ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC.

vs CITY MAYOR OF
MANILA, digested

Posted by Pius Morados on November 7, 2011

GR # l-24693 July 31, 1967 (Constitutional Law – Police Power, Ordinance)

FACTS: Petitioners assailed the constitutionality of Manila Ordinance No. 4760 regulating the operation
of hotels, motels and lodging houses on the ground that it is unreasonable and hence violative to the
due process clause, wherein it requires establishments to provide guest registration forms on the lobby
open for public view at all times.

RespondentCityMayor contends that the challenged ordinance was a valid and proper exercise of police
power measure for the proper purpose of curbing immorality. An explanatory note for the challenged
ordinance made mention of the alarming increase in the rate of prostitution, adultery and fornication
inManilatraceable in great part to the existence of motels and the like.

ISSUE: Whether or not Ordinance No. 4760 is violative of the due process clause.

HELD: No, the challenged ordinance as an exercise of police power was precisely enacted to minimize
certain practices hurtful to public morals. As a due process requirement, an ordinance must not outrun
the bounds of reason and result in sheer oppression for it to be valid. Thus it would be unreasonable to
stigmatize an ordinance enacted precisely for the well-being of the people, specially if there is no factual
foundation being laid to prove its alleged violation of due process and offset the ordinance’s presumed
validity.

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ERMITA-MALATE vs MANILA MAYOR

on August 22, 2012

READ CASE DIGEST HERE.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-24693 October 23, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR, INC. and GO
HIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.

J. M. Aruego, A. Tenchavez and L. U. Go for petitioners-appellees.

Panganiban, Abad and Associates for respondent-appellant.

RESOLUTION

FERNANDO, J.:

A Motion for the reconsideration of our decision of July 31, 1967 was filed by petitioners, followed by a
Motion for new trial. As the Motion for reconsideration is clearly without merit, there is no occasion for
this sought-for new trial. Consequently, both motions are denied.

(1) No merit in the Motion for reconsideration. —

In the decision of this Court of July 31, 1967, sought to be reconsidered, its basis was categorically set
forth in the following language:
As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines of a
fundamental character ought to have admonished the lower court against such a sweeping
condemnation of the challenged ordinance. Its decision cannot be allowed to stand, consistently with
what has hitherto been the accepted standards of constitutional adjudication, in both procedural and
substantive aspects.

Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the
presumption of validity that attaches to a challenged statute or ordinance. As was expressed
categorically by Justice Malcolm: “The presumption is all in favor of validity. . . . The action of the elected
representatives of the people cannot be lightly set aside. The councilors must, in the very nature of
things, be familiar with the necessities of their particular municipality and with all the facts and
circumstances which surround the subject and necessitates action. The local legislative body, by
enacting the ordinance, has in effect given notice that the regulations are essential to the well being of
the people. . .. The Judiciary should not lightly set aside legislative action when there is not a clear
invasion of personal or property rights under the guise of police regulation.

It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to
rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here. The
principle has been nowhere better expressed than in the leading case of O’Gorman & Young v. Hartford
Fire Insurance Co., where the American Supreme Court through Justice Brandeis tersely and succinctly
summed up the matter thus: “The statute here questioned deals with a subject clearly within the scope
of the police power. We are asked to declare it void on the ground that the specific method of
regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As
underlying questions of fact may condition the constitutionality of legislation of this character, the
presumption of constitutionality must prevail in the absence of some factual foundation of record for
overthrowing the statute.” No such factual foundation being laid in the present case, the lower court
deciding the matter on the pleadings and the stipulation of facts, the presumption of validity must
prevail and the judgment against the ordinance set aside.

The O’Gorman principle1 fails to meet the approval of counsel of petitioners. They would restrain unduly
and unjustifiably its operation. In the language of the motion for reconsideration: “The U. S. Supreme
Court was not laying down as a general rule in constitutional cases that there must be a factual
foundation of record to offset the presumption of constitutionality of any and every law.”

To paraphrase Justice Brandeis, this interpretation is without support in authority or reason and rests
upon a misconception. It is to betray an almost total lack of awareness of the import and significance of
the O’Gorman doctrine in American constitutional law. Authorities on the subject of proven competence
and knowledge flatly reject such a view. Dodd,2 Dowling,3 Freund Sutherland, De Wolfe Howe, and
Brown,4 and Kauper5 in their standard casebooks quote the same excerpt from O’Gorman v. Hartford
Fire Ins. Co. appearing in the opinion of this Court. Dodd entertained no doubt: “The accepted view is
that stated by Mr. Justice Brandeis in the O’Gorman case.”6
Frankfurter and Landis were equally explicit in their appreciation of what the O’Gorman dictum means.
“As doctrine, there is nothing new in the avowal of a need for concreteness in passing judgment upon
the legislative judgment. But perhaps last term marks a more sedulous attention to its observance.
Certainly the procedure followed by the Court in O’Gorman & Young v. Hartford Fire Ins. Co., if regularly
observed, will affect not a little the fate of legislation. If insisted upon, it will compel the bar to argue
questions of legislative validity in the perspective of the circumstances which gave rise to a particular
statute.”7

The late Professor Hamilton of the Yale Law School, one of the most distinguished constitutionalists,
would have been appalled by the unorthodoxy of the view of counsel of petitioners. For him, the
O’Gorman opinion was a manifestation of the jurist’s art at its best:

If the jurists have the feelings of other men, Monday, the fifth of January nineteen hundred and thirty
one, must have been a day of consequence in the life of Mr. Justice Brandeis. On that day he handed
down the judgment of the United States Supreme Court in the O’Gorman case. The cause was a simple
suit in contract: the result depended upon the validity of a New Jersey statute regulating the
commissions to be paid by insurance companies to their agents for securing business. The more general
question was the tolerance to be accorded to legislative price-fixing under the Fourteenth Amendment.
And, as the fortunes of litigation broke, the issue came to be the intellectual procedure by which the
constitutionality of the acts which make up the public control of business are to be determined. Upon
that day the views of Brandeis became “the opinion of the court,” and a new chapter in judicial history
began to be written.

xxx xxx xxx

In form “the opinion of the court” is a very simple and unpretentious document. It begins with a
statement of the issue and a history of the case, continues with a brief summary of the reasons for the
statute and a statement that “the business of insurance is so affected with a public interest that the
state may regulate the rates,” and concludes with a declaration of the test for validity. As “underlying
questions of fact may condition the constitutionality of legislation of this character,” it follows that “the
presumption of constitutionality must prevail in the absence of some factual foundation of record for
overthrowing the statute.” It did not appear “upon the face of the statute, or from any facts of which
the court must take judicial notice” that in New Jersey “evils did not exist,” for which the statute was
“an appropriate remedy.” Accordingly the court was compelled to declare the statute valid; in fact it was
left with no alternative.

Yet the simple lines of a short opinion present a superb example of the jurist’s art. . . .8

This is not to discount the possibility of a situation where the nullity of a statute, executive order, or
ordinance may not be readily apparent but the threat to constitutional rights, especially those involving
the freedom of the mind, present and ominous. That in such an event there should not be a rigid
insistence on the requirement that evidence be presented does not argue against the force of the above
excerpts on the weight to be accorded the O’Gorman doctrine in this case.
The prop here failing, is there anything else in the Motion for reconsideration that calls for a
modification of the decision of this Court? The answer must be in the negative. It ought not to have
escaped petitioners that the opinion of the Court after noting the lack of factual foundation to offset the
presumption of constitutionality went on to discuss the due process aspects to make clear that on its
face, the Ordinance cannot be considered void.

Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being
repugnant to the due process clause of the Constitution. The mantle of protection associated with the
due process guaranty does not cover petitioners. This particular manifestation of a police power
measure being specifically aimed to safeguard public morals is immune from such imputation of nullity
resting purely on conjecture and unsupported by anything of substance. To hold otherwise would be to
unduly restrict and narrow the scope of police power which has been properly characterized as the most
essential, insistent and the least limitable of powers, extending as it does “to all the great public needs.”
It would be, to paraphrase another leading decision, to destroy the very purpose of the state if it could
be deprived or allowed itself to be deprived of its competence to promote public health, public morals,
public safety and the general welfare. Negatively put, police power is “that inherent and plenary power
in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society.”

There is no question but that the challenged ordinance was precisely enacted to minimize certain
practices hurtful to public morals. The explanatory note of the then Councilor Herminio Astorga included
as annex to the stipulation of facts speaks of the alarming increase in the rate of prostitution, adultery
and fornication in Manila, traceable in great part to the existence of motels, which “provide a necessary
atmosphere for clandestine entry, presence and exit” and thus become the “ideal haven for prostitutes
and thrill-seekers.” The challenged ordinance then proposes to check the clandestine harboring of
transients and guests of these establishments by requiring these transients and guests to fill up a
registration form, prepared for the purpose, in a lobby open to public view at all times, and by
introducing several other amendatory provisions calculated to shatter the privacy that characterizes the
registration of transients and guests.” Moreover, the increase in the license fees was intended to
discourage “establishments of the kind from operating for purpose other than legal” and at the same
time, to increase “the income of the city government.” It would appear therefore that the stipulation of
facts, far from sustaining any attack against the validity of the ordinance, argues eloquently for it.

There is nothing in the Motion for reconsideration that in any wise affects adversely or impairs the force
of the above conclusion. The task of proving that the challenged Ordinance is void on its face is one
attended with difficulty. Nonetheless, with the persistence worthy of a better cause, petitioners would
cite as fatal infirmity the alleged invasion of the rights against unreasonable search and seizure, to
liberty, and to property.

As the unchallenged rule, to paraphrase Laurel, is that unless a person is injuriously affected in any of his
constitutional rights by the operation of statute or ordinance,9 he has no standing, the invocation of
petitioners as motel operators of their alleged right to being free from unreasonable search and seizure
need not be taken seriously. Nor does their claim of the alleged infringement of their liberty deserve any
further thought, its implausibility being self-evident, except perhaps as to the liberty to contract, which
is part and parcel of their right to the property. Unfortunately for them, in this jurisdiction the liberty to
contract, except in the Pomar10 case as noted in the decision, has never stood in the way of the
enactment of police power measures when called for by circumstances such as undoubtedly exist in this
case. The same is true in the United States, where such a concept has definitely fallen from its previously
high state under the impact of the Nebbia,11 West Coast Hotel Co.12 and Olson decisions.13

That leaves only the alleged grievance that there was an unconstitutional invasion of property rights. It
goes without saying that petitioners themselves cannot ignore that one could, consistently with the
fundamental law, be deprived of his property as long as due process is observed. The decision makes
clear that such indeed was the case as far as this Ordinance was concerned. To that aspect, a
considerable portion of the opinion was devoted, citing a number of applicable decisions of this Court,
all tending to demonstrate that there was no due process infraction. The Motion for reconsideration is
conspicuously barren of any attempt to show that under our previous decisions referred to, the
challenged Ordinance could be successfully assailed. It would follow then that this reiteration of an
argument, previously shown to be far from persuasive, is deserving of a similar fate.

That is all there is to the Motion for reconsideration. That and what Justice Cardozo aptly referred to as
reference to “grotesque or fanciful situations,” which if they would arise could then be appropriately
dealt with. As the famed jurist aptly noted: “That they are conceivable though improbable ought not to
govern our construction.”14 That is not the way then to impugn the validity of an ordinance. Neither
could it be rightfully looked upon as laying a foundation for setting aside a decision. The Motion for
reconsideration, to repeat, is palpably lacking in merit.

(1) No occasion for new trial. —

Subsequently, a supplemental Motion for new trial dated September 25, 1967, was filed the same day.
As earlier pointed out, with the Motion for reconsideration having been shown to be devoid of merit,
the supplemental Motion for new trial should likewise be denied. In the main, what was so
unsuccessfully put forth by counsel for petitioners was adhered to. Additional counsel would bring in
new points, namely, the alleged denial of equal protection and the repugnancy to “the laissez
faire principle underlying our economic system, as it would substantially reduce return on the
investment.” Neither suffices to justify any modification of the decision, much less its reconsideration. A
new trial would therefore be an exercise in futility.

The alleged denial of equal protection was predicated on the greater advantages that the motels in the
suburbs of Manila would enjoy as against those within the city limits. On its face, such argument is
clearly unfounded. If the legislative power of the Municipal Board of the City of Manila were not limited
to its boundaries, if it could apply to the suburban area, then perhaps plausibility could be imparted to
such a claim. Since, as is undeniable, the challenged Ordinance applies to all the motels in Manila, an
assertion that there is denial of equal protection would, to put it at its mildest, be extremely far-fetched.

Nor does the invocation of the laissez faire concept as bar against the enactment of regulatory
measures, which undoubtedly would result in the diminution of income and the loss of business,
occasion any misgiving as to the conformity of the decision arrived at by this Court with controlling
constitutional law principles. Did not petitioners take note of the view announced by Justice Laurel
quoted in the decision to the effect that the policy “of laissez faire has to some extent given way to the
assumption by the government of the right of intervention even in contractual relations affected with
public interest.” The decision likewise cited this jurist, speaking for the Court in Calalang v.
Williams:15 ”Public welfare, then, lies at the bottom of the enactment of said law, and the state in order
to promote the general welfare may interfere with personal liberty, with property, and with business
and occupations. Perhaps and property may be subjected to all kinds of restraints and burdens, in order
to secure, the general comfort, health, and prosperity of the state. . . . To this fundamental aim of our
Government the rights of the individual are subordinated.” That was in 1940. Then in 1955, came Co
Kiam v. City of Manila,16 where Justice Reyes, A., for a unanimous Court categorically declared: “And
surely, the mere fact that some individuals in the community may be deprived of their present business
or a particular mode of earning a living can not prevent the exercise of the police power. As was said in a
case, persons licensed to pursue occupations which may in the public need and interest be affected by
the exercise of the police power embark in those occupations subject to the disadvantages which may
result from the legal exercise of that power. (City of New Orleans v. Stafford, 27 L. Ann. 417).”

Nor does the reference by new counsel to American state court decisions call for a different conclusion.
The United States Supreme Court in the leading case of West Virginia State Board of Education v.
Barnette,17 decided in 1943, was equally explicit, saying “the laissez-faire concept or principle of non-
interference has withered at least as to economic affairs, and social advancements are increasingly
sought through closer integration of society and through expanded and strengthened governmental
controls.” Two names of great repute, Freund and Learned Hand, were cited by petitioners. Neither if
properly understood, could help their cause at all. According to Freund: “In short, when freedom of the
mind is imperiled by law, it is freedom that commands a momentum of respect, when property is
imperiled, it is the lawmakers’ judgment that commands respect. This dual standard may not precisely
reverse the presumption of constitutionality in civil liberties cases, but obviously it does set up a
hierarchy of values within the due process clause.”18 The illustrious Learned Hand writing on Chief
Justice Stone’s concept of the judicial function had occasion to note the “discredited attitude” of what
he referred to “as the old apostles of the institution of property. . . .”19

What then is left? Clearly nothing to call for the reconsideration of our decision of July 31, 1967. Nor is
there the least justification for a new trial and reception of evidence.

WHEREFORE, the Motion for reconsideration of petitioners of September 16, 1967 and supplemental
Motion for new trial of September 25, 1967, are denied.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles,
JJ., concur.

READ CASE DIGEST HERE.

Footnotes
1
Justice Brandeis in Pacific States Box v. White (1935) 296 US 176, 185, further elaborated on the above
doctrine: “The order here in question deals with a subject clearly within the scope of the police power.
See Turner v. Maryland, 107 US 38, 27 L. ed. 370, 2 S. Ct. 44. When such legislative action “is called in
question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption
of the existence of that state of facts, and one who assails the classification must carry the burden of
showing by a resort to common knowledge or other matters which may be judicially noticed, or to other
legitimate proof, that the action is arbitrary.” Borden’s Farm Products Co. v. Baldwin, 293 US 194, 209,
79 L. ed. 281, 288, 55 S. Ct. 187. The burden is not sustained by making allegations which are merely the
general conclusions of law or fact. See Public Service Commission v. Great Northern Utilities Co., 289 US
130, 136, 137, 77 L. ed. 1080, 1085, 1086, 53 S. Ct. 546. Facts relied upon to rebut the presumption of
constitutionality must be specifically set forth. See Aetna Ins. Co. v. Hyde, 275 US 440, 72 L. ed. 357, 48
S. Ct. 174; O’Gorman & Young v. Hartford F. Ins. Co., 282 US 251, 75 L. ed. 324, 51 S. Ct. 130, 72 A.L.R.
1163; Hegeman Farms Corp. v. Baldwin, 293 US 163, 79 L. ed. 259, 55 S. Ct.” Outside of the Pacific States
Box case, the O’Gorman decision has been cited with approval in Osborn v. Ozlin (1940) 310 US 53;
Carolene Products Co. v. United States (1944) 323 US 18; California Auto Asso. v. Maloney (1951) 341 US
105; and Seagram and Sons v. Hostetter (1966) 16 L. ed. 336. Referring to the O’Gorman doctrine, it has
been said: “The propriety of such a change in the method of approach to constitutional questions, even
though it may involve overruling previously decided cases, has been recognized since the days of
Taney.” (Comment, 42 Yale Law Journal 1258 [1933].)
2
Dodd, Cases on Constitutional Law (1949) 4th ed., p. 86.
3
Dowling, Cases on Constitutional Law (1950) 4th ed., p. 769.
4
Freund Sutherland, De Wolfe Howe, and Brown, Constitutional Law: Cases and Other Problems (1954),
p. 122.
5
Kauper, Constitutional Law: Cases and Materials (1960) p. 62.
6
Dodd, op. cit., p. 87.
7
Frankfurter and Landis, The Business of the Supreme Court at October Term 1930. (1931) 45 Harv. Law
Rev., 271, 325.
8
Hamilton, The Jurist’s Art (1931), 31 Col. Law Rev. 1073-1075.
9
People v. Vera (1937) 65 Phil. 56, 89.
10
46 Phil. 440 (1924).
11
291 US 502 (1934).
12
300 US 379 (1937).
13
313 US 1305 (1942).
14
Gaines v. City of New York (1915) 109 N. E. 594, 596.
15
70 Phil. 726, 733.
16
96 Phil. 649, 654.
17
319 US 624.
18
Freund, On Understanding the Supreme Court (1950) p. 11
19
46 Columbia Law Rev. 698 (1945).

READ CASE DIGEST HERE.

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-24693 July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR
INC. and GO CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.

Panganiban, Abad and Associates Law Office for respondent-appellant.

J. M. Aruego, Tenchavez and Associates for intervenor-appellee.

FERNANDO, J.:

The principal question in this appeal from a judgment of the lower court in an action for
prohibition is whether Ordinance No. 4760 of the City of Manila is violative of the due
process clause. The lower court held that it is and adjudged it "unconstitutional, and,
therefore, null and void." For reasons to be more specifically set forth, such judgment must
be reversed, there being a failure of the requisite showing to sustain an attack against its
validity.

The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the
petitioners, Ermita-Malate Hotel and Motel Operators Association, one of its members,
Hotel del Mar Inc., and a certain Go Chiu, who is "the president and general manager of
the second petitioner" against the respondent Mayor of the City of Manila who was sued
in his capacity as such "charged with the general power and duty to enforce ordinances of
the City of Manila and to give the necessary orders for the faithful execution and
enforcement of such ordinances." (par. 1). It was alleged that the petitioner non-stock
corporation is dedicated to the promotion and protection of the interest of its eighteen
(18) members "operating hotels and motels, characterized as legitimate businesses duly
licensed by both national and city authorities, regularly paying taxes, employing and giving
livelihood to not less than 2,500 person and representing an investment of more than P3
million."1 (par. 2). It was then alleged that on June 13, 1963, the Municipal Board of the
City of Manila enacted Ordinance No. 4760, approved on June 14, 1963 by the then Vice-
Mayor Herminio Astorga, who was at the time acting as Mayor of the City of Manila. (par.
3).

After which the alleged grievances against the ordinance were set forth in detail. There
was the assertion of its being beyond the powers of the Municipal Board of the City of
Manila to enact insofar as it would regulate motels, on the ground that in the revised
charter of the City of Manila or in any other law, no reference is made to motels; that
Section 1 of the challenged ordinance is unconstitutional and void for being unreasonable
and violative of due process insofar as it would impose P6,000.00 fee per annum for first
class motels and P4,500.00 for second class motels; that the provision in the same section
which would require the owner, manager, keeper or duly authorized representative of a
hotel, motel, or lodging house to refrain from entertaining or accepting any guest or
customer or letting any room or other quarter to any person or persons without his filling
up the prescribed form in a lobby open to public view at all times and in his presence,
wherein the surname, given name and middle name, the date of birth, the address, the
occupation, the sex, the nationality, the length of stay and the number of companions in
the room, if any, with the name, relationship, age and sex would be specified, with data
furnished as to his residence certificate as well as his passport number, if any, coupled with
a certification that a person signing such form has personally filled it up and affixed his
signature in the presence of such owner, manager, keeper or duly authorized
representative, with such registration forms and records kept and bound together, it also
being provided that the premises and facilities of such hotels, motels and lodging houses
would be open for inspection either by the City Mayor, or the Chief of Police, or their duly
authorized representatives is unconstitutional and void again on due process grounds, not
only for being arbitrary, unreasonable or oppressive but also for being vague, indefinite
and uncertain, and likewise for the alleged invasion of the right to privacy and the guaranty
against self-incrimination; that Section 2 of the challenged ordinance classifying motels
into two classes and requiring the maintenance of certain minimum facilities in first class
motels such as a telephone in each room, a dining room or, restaurant and laundry
similarly offends against the due process clause for being arbitrary, unreasonable and
oppressive, a conclusion which applies to the portion of the ordinance requiring second
class motels to have a dining room; that the provision of Section 2 of the challenged
ordinance prohibiting a person less than 18 years old from being accepted in such hotels,
motels, lodging houses, tavern or common inn unless accompanied by parents or a lawful
guardian and making it unlawful for the owner, manager, keeper or duly authorized
representative of such establishments to lease any room or portion thereof more than
twice every 24 hours, runs counter to the due process guaranty for lack of certainty and for
its unreasonable, arbitrary and oppressive character; and that insofar as the penalty
provided for in Section 4 of the challenged ordinance for a subsequent conviction would,
cause the automatic cancellation of the license of the offended party, in effect causing the
destruction of the business and loss of its investments, there is once again a transgression
of the due process clause.

There was a plea for the issuance of preliminary injunction and for a final judgment
declaring the above ordinance null and void and unenforceable. The lower court on July 6,
1963 issued a writ of preliminary injunction ordering respondent Mayor to refrain from
enforcing said Ordinance No. 4760 from and after July 8, 1963.

In the a answer filed on August 3, 1963, there was an admission of the personal
circumstances regarding the respondent Mayor and of the fact that petitioners are
licensed to engage in the hotel or motel business in the City of Manila, of the provisions of
the cited Ordinance but a denial of its alleged nullity, whether on statutory or
constitutional grounds. After setting forth that the petition did fail to state a cause of
action and that the challenged ordinance bears a reasonable relation, to a proper purpose,
which is to curb immorality, a valid and proper exercise of the police power and that only
the guests or customers not before the court could complain of the alleged invasion of the
right to privacy and the guaranty against self incrimination, with the assertion that the
issuance of the preliminary injunction ex parte was contrary to law, respondent Mayor
prayed for, its dissolution and the dismissal of the petition.

Instead of evidence being offered by both parties, there was submitted a stipulation of
facts dated September 28, 1964, which reads:

1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and
Hotel del Mar Inc. are duly organized and existing under the laws of the Philippines, both
with offices in the City of Manila, while the petitioner Go Chin is the president and general
manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a resident of Baguio
City, all having the capacity to sue and be sued;

2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief
executive of the City of Manila charged with the general power and duty to enforce
ordinances of the City of Manila and to give the necessary orders for the faithful execution
and enforcement of such ordinances;

3. That the petitioners are duly licensed to engage in the business of operating hotels and
motels in Malate and Ermita districts in Manila;

4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No.
4760, which was approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the
acting City Mayor of Manila, in the absence of the respondent regular City Mayor,
amending sections 661, 662, 668-a, 668-b and 669 of the compilation of the ordinances of
the City of Manila besides inserting therein three new sections. This ordinance is similar to
the one vetoed by the respondent Mayor (Annex A) for the reasons stated in its 4th
Indorsement dated February 15, 1963 (Annex B);
5. That the explanatory note signed by then Councilor Herminio Astorga was submitted
with the proposed ordinance (now Ordinance 4760) to the Municipal Board, copy of which
is attached hereto as Annex C;

6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license
fees paid by the 105 hotels and motels (including herein petitioners) operating in the City
of Manila.1äwphï1.ñët

Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was
laid on the presumption of the validity of the challenged ordinance, the burden of showing
its lack of conformity to the Constitution resting on the party who assails it, citing not
only U.S. v. Salaveria, but likewise applicable American authorities. Such a memorandum
likewise refuted point by point the arguments advanced by petitioners against its validity.
Then barely two weeks later, on February 4, 1965, the memorandum for petitioners was
filed reiterating in detail what was set forth in the petition, with citations of what they
considered to be applicable American authorities and praying for a judgment declaring the
challenged ordinance "null and void and unenforceable" and making permanent the writ
of preliminary injunction issued.

After referring to the motels and hotels, which are members of the petitioners association,
and referring to the alleged constitutional questions raised by the party, the lower court
observed: "The only remaining issue here being purely a question of law, the parties, with
the nod of the Court, agreed to file memoranda and thereafter, to submit the case for
decision of the Court." It does appear obvious then that without any evidence submitted
by the parties, the decision passed upon the alleged infirmity on constitutional grounds of
the challenged ordinance, dismissing as is undoubtedly right and proper the untenable
objection on the alleged lack of authority of the City of Manila to regulate motels, and
came to the conclusion that "the challenged Ordinance No. 4760 of the City of Manila,
would be unconstitutional and, therefore, null and void." It made permanent the
preliminary injunction issued against respondent Mayor and his agents "to restrain him
from enforcing the ordinance in question." Hence this appeal.

As noted at the outset, the judgment must be reversed. A decent regard for constitutional
doctrines of a fundamental character ought to have admonished the lower court against
such a sweeping condemnation of the challenged ordinance. Its decision cannot be
allowed to stand, consistently with what has hitherto been the accepted standards of
constitutional adjudication, in both procedural and substantive aspects.

Primarily what calls for a reversal of such a decision is the absence of any evidence to
offset the presumption of validity that attaches to a challenged statute or ordinance. As
was expressed categorically by Justice Malcolm: "The presumption is all in favor of validity
x x x . The action of the elected representatives of the people cannot be lightly set aside.
The councilors must, in the very nature of things, be familiar with the necessities of their
particular municipality and with all the facts and circumstances which surround the subject
and necessitate action. The local legislative body, by enacting the ordinance, has in effect
given notice that the regulations are essential to the well being of the people x x x . The
Judiciary should not lightly set aside legislative action when there is not a clear invasion of
personal or property rights under the guise of police regulation.2

It admits of no doubt therefore that there being a presumption of validity, the necessity
for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face
which is not the case here. The principle has been nowhere better expressed than in the
leading case of O'Gorman & Young v. Hartford Fire Insurance Co.,3 where the American
Supreme Court through Justice Brandeis tersely and succinctly summed up the matter
thus: The statute here questioned deals with a subject clearly within the scope of the
police power. We are asked to declare it void on the ground that the specific method of
regulation prescribed is unreasonable and hence deprives the plaintiff of due process of
law. As underlying questions of fact may condition the constitutionality of legislation of
this character, the resumption of constitutionality must prevail in the absence of some
factual foundation of record for overthrowing the statute." No such factual foundation
being laid in the present case, the lower court deciding the matter on the pleadings and
the stipulation of facts, the presumption of validity must prevail and the judgment against
the ordinance set aside.

Nor may petitioners assert with plausibility that on its face the ordinance is fatally
defective as being repugnant to the due process clause of the Constitution. The mantle of
protection associated with the due process guaranty does not cover petitioners. This
particular manifestation of a police power measure being specifically aimed to safeguard
public morals is immune from such imputation of nullity resting purely on conjecture and
unsupported by anything of substance. To hold otherwise would be to unduly restrict and
narrow the scope of police power which has been properly characterized as the most
essential, insistent and the least limitable of powers,4 extending as it does "to all the great
public needs."5 It would be, to paraphrase another leading decision, to destroy the very
purpose of the state if it could be deprived or allowed itself to be deprived of its
competence to promote public health, public morals, public safety and the genera
welfare.6 Negatively put, police power is "that inherent and plenary power in the State
which enables it to prohibit all that is hurt full to the comfort, safety, and welfare of
society.7

There is no question but that the challenged ordinance was precisely enacted to minimize
certain practices hurtful to public morals. The explanatory note of the Councilor Herminio
Astorga included as annex to the stipulation of facts, speaks of the alarming increase in the
rate of prostitution, adultery and fornication in Manila traceable in great part to the
existence of motels, which "provide a necessary atmosphere for clandestine entry,
presence and exit" and thus become the "ideal haven for prostitutes and thrill-seekers."
The challenged ordinance then proposes to check the clandestine harboring of transients
and guests of these establishments by requiring these transients and guests to fill up a
registration form, prepared for the purpose, in a lobby open to public view at all times, and
by introducing several other amendatory provisions calculated to shatter the privacy that
characterizes the registration of transients and guests." Moreover, the increase in the
licensed fees was intended to discourage "establishments of the kind from operating for
purpose other than legal" and at the same time, to increase "the income of the city
government." It would appear therefore that the stipulation of facts, far from sustaining
any attack against the validity of the ordinance, argues eloquently for it.

It is a fact worth noting that this Court has invariably stamped with the seal of its approval,
ordinances punishing vagrancy and classifying a pimp or procurer as a vagrant;8 provide a
license tax for and regulating the maintenance or operation of public dance
halls;9 prohibiting gambling;10 prohibiting jueteng;11 and monte;12prohibiting playing of
panguingui on days other than Sundays or legal holidays;13 prohibiting the operation of
pinball machines;14 and prohibiting any person from keeping, conducting or maintaining an
opium joint or visiting a place where opium is smoked or otherwise used,15 all of which are
intended to protect public morals.

On the legislative organs of the government, whether national or local, primarily rest the
exercise of the police power, which, it cannot be too often emphasized, is the power to
prescribe regulations to promote the health, morals, peace, good order, safety and general
welfare of the people. In view of the requirements of due process, equal protection and
other applicable constitutional guaranties however, the exercise of such police power
insofar as it may affect the life, liberty or property of any person is subject to judicial
inquiry. Where such exercise of police power may be considered as either capricious,
whimsical, unjust or unreasonable, a denial of due process or a violation of any other
applicable constitutional guaranty may call for correction by the courts.

We are thus led to considering the insistent, almost shrill tone, in which the objection is
raised to the question of due process.16 There is no controlling and precise definition of
due process. It furnishes though a standard to which the governmental action should
conform in order that deprivation of life, liberty or property, in each appropriate case, be
valid. What then is the standard of due process which must exist both as a procedural and
a substantive requisite to free the challenged ordinance, or any governmental action for
that matter, from the imputation of legal infirmity sufficient to spell its doom? It is
responsiveness to the supremacy of reason, obedience to the dictates of justice.
Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process
requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason
and result in sheer oppression. Due process is thus hostile to any official action marred by
lack of reasonableness. Correctly it has been identified as freedom from arbitrariness. It is
the embodiment of the sporting idea of fair play.17 It exacts fealty "to those strivings for
justice" and judges the act of officialdom of whatever branch "in the light of reason drawn
from considerations of fairness that reflect [democratic] traditions of legal and political
thought."18 It is not a narrow or "technical conception with fixed content unrelated to
time, place and circumstances,"19 decisions based on such a clause requiring a "close and
perceptive inquiry into fundamental principles of our society."20 Questions of due process
are not to be treated narrowly or pedantically in slavery to form or phrases.21

It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet

what a municipal lawmaking body considers an evil of rather serious proportion an
arbitrary and capricious exercise of authority. It would seem that what should be deemed
unreasonable and what would amount to an abdication of the power to govern is inaction
in the face of an admitted deterioration of the state of public morals. To be more specific,
the Municipal Board of the City of Manila felt the need for a remedial measure. It provided
it with the enactment of the challenged ordinance. A strong case must be found in the
records, and, as has been set forth, none is even attempted here to attach to an ordinance
of such character the taint of nullity for an alleged failure to meet the due process
requirement. Nor does it lend any semblance even of deceptive plausibility to petitioners'
indictment of Ordinance No. 4760 on due process grounds to single out such features as
the increased fees for motels and hotels, the curtailment of the area of freedom to
contract, and, in certain particulars, its alleged vagueness.

Admittedly there was a decided increase of the annual license fees provided for by the
challenged ordinance for hotels and motels, 150% for the former and over 200% for the
latter, first-class motels being required to pay a P6,000 annual fee and second-class
motels, P4,500 yearly. It has been the settled law however, as far back as 1922 that
municipal license fees could be classified into those imposed for regulating occupations or
regular enterprises, for the regulation or restriction of non-useful occupations or
enterprises and for revenue purposes only.22 As was explained more in detail in the above
Cu Unjieng case: (2) Licenses for non-useful occupations are also incidental to the police
power and the right to exact a fee may be implied from the power to license and regulate,
but in fixing amount of the license fees the municipal corporations are allowed a much
wider discretion in this class of cases than in the former, and aside from applying the well-
known legal principle that municipal ordinances must not be unreasonable, oppressive, or
tyrannical, courts have, as a general rule, declined to interfere with such discretion. The
desirability of imposing restraint upon the number of persons who might otherwise
engage in non-useful enterprises is, of course, generally an important factor in the
determination of the amount of this kind of license fee. Hence license fees clearly in the
nature of privilege taxes for revenue have frequently been upheld, especially in of licenses
for the sale of liquors. In fact, in the latter cases the fees have rarely been declared
unreasonable.23

Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine
earlier announced by the American Supreme Court that taxation may be made to
implement the state's police power. Only the other day, this Court had occasion to affirm
that the broad taxing authority conferred by the Local Autonomy Act of 1959 to cities and
municipalities is sufficiently plenary to cover a wide range of subjects with the only
limitation that the tax so levied is for public purposes, just and uniform.25

As a matter of fact, even without reference to the wide latitude enjoyed by the City of
Manila in imposing licenses for revenue, it has been explicitly held in one case that "much
discretion is given to municipal corporations in determining the amount," here the license
fee of the operator of a massage clinic, even if it were viewed purely as a police power
measure.26 The discussion of this particular matter may fitly close with this pertinent
citation from another decision of significance: "It is urged on behalf of the plaintiffs-
appellees that the enforcement of the ordinance could deprive them of their lawful
occupation and means of livelihood because they can not rent stalls in the public markets.
But it appears that plaintiffs are also dealers in refrigerated or cold storage meat, the sale
of which outside the city markets under certain conditions is permitted x x x . And surely,
the mere fact, that some individuals in the community may be deprived of their present
business or a particular mode of earning a living cannot prevent the exercise of the police
power. As was said in a case, persons licensed to pursue occupations which may in the
public need and interest be affected by the exercise of the police power embark in these
occupations subject to the disadvantages which may result from the legal exercise of that
power."27

Nor does the restriction on the freedom to contract, insofar as the challenged ordinance
makes it unlawful for the owner, manager, keeper or duly authorized representative of any
hotel, motel, lodging house, tavern, common inn or the like, to lease or rent room or
portion thereof more than twice every 24 hours, with a proviso that in all cases full
payment shall be charged, call for a different conclusion. Again, such a limitation cannot be
viewed as a transgression against the command of due process. It is neither unreasonable
nor arbitrary. Precisely it was intended to curb the opportunity for the immoral or
illegitimate use to which such premises could be, and, according to the explanatory note,
are being devoted. How could it then be arbitrary or oppressive when there appears a
correspondence between the undeniable existence of an undesirable situation and the
legislative attempt at correction. Moreover, petitioners cannot be unaware that every
regulation of conduct amounts to curtailment of liberty which as pointed out by Justice
Malcolm cannot be absolute. Thus: "One thought which runs through all these different
conceptions of liberty is plainly apparent. It is this: 'Liberty' as understood in democracies,
is not license; it is 'liberty regulated by law.' Implied in the term is restraint by law for the
good of the individual and for the greater good of the peace and order of society and the
general well-being. No man can do exactly as he pleases. Every man must renounce
unbridled license. The right of the individual is necessarily subject to reasonable restraint
by general law for the common good x x x The liberty of the citizen may be restrained in
the interest of the public health, or of the public order and safety, or otherwise within the
proper scope of the police power."28

A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom
of the enactment of said law, and the state in order to promote the general welfare may
interfere with personal liberty, with property, and with business and occupations. Persons
and property may be subjected to all kinds of restraints and burdens, in order to secure
the general comfort, health, and prosperity of the state x x x To this fundamental aim of
our Government the rights of the individual are subordinated. Liberty is a blessing without
which life is a misery, but liberty should not be made to prevail over authority because
then society will fall into anarchy. Neither should authority be made to prevail over liberty
because then the individual will fall into slavery. The citizen should achieve the required
balance of liberty and authority in his mind through education and personal discipline, so
that there may be established the resultant equilibrium, which means peace and order and
happiness for all.29

It is noteworthy that the only decision of this Court nullifying legislation because of undue
deprivation of freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a
living principle. The policy of laissez faire has to some extent given way to the assumption
by the government of the right of intervention even in contractual relations affected with
public interest.31 What may be stressed sufficiently is that if the liberty involved were
freedom of the mind or the person, the standard for the validity of governmental acts is
much more rigorous and exacting, but where the liberty curtailed affects at the most rights
of property, the permissible scope of regulatory measure is wider.32 How justify then the
allegation of a denial of due process?

Lastly, there is the attempt to impugn the ordinance on another due process ground by
invoking the principles of vagueness or uncertainty. It would appear from a recital in the
petition itself that what seems to be the gravamen of the alleged grievance is that the
provisions are too detailed and specific rather than vague or uncertain. Petitioners,
however, point to the requirement that a guest should give the name, relationship, age
and sex of the companion or companions as indefinite and uncertain in view of the
necessity for determining whether the companion or companions referred to are those
arriving with the customer or guest at the time of the registry or entering the room With
him at about the same time or coming at any indefinite time later to join him; a proviso in
one of its sections which cast doubt as to whether the maintenance of a restaurant in a
motel is dependent upon the discretion of its owners or operators; another proviso which
from their standpoint would require a guess as to whether the "full rate of payment" to be
charged for every such lease thereof means a full day's or merely a half-day's rate. It may
be asked, do these allegations suffice to render the ordinance void on its face for alleged
vagueness or uncertainty? To ask the question is to answer it. From Connally v. General
Construction Co.33 toAdderley v. Florida,34 the principle has been consistently upheld that
what makes a statute susceptible to such a charge is an enactment either forbidding or
requiring the doing of an act that men of common intelligence must necessarily guess at its
meaning and differ as to its application. Is this the situation before us? A citation from
Justice Holmes would prove illuminating: "We agree to all the generalities about not
supplying criminal laws with what they omit but there is no canon against using common
sense in construing laws as saying what they obviously mean."35

That is all then that this case presents. As it stands, with all due allowance for the
arguments pressed with such vigor and determination, the attack against the validity of
the challenged ordinance cannot be considered a success. Far from it. Respect for
constitutional law principles so uniformly held and so uninterruptedly adhered to by this
Court compels a reversal of the appealed decision.

Wherefore, the judgment of the lower court is reversed and the injunction issued lifted
forthwith. With costs.

Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur.
Concepcion, C.J. and Dizon, J., are on leave.

Footnotes
1
The eighteen members are Waldorf Hotel, Hotel Monte Carlo, Golden Gate Motel, Miami
Hotel, Palm Spring Hotel, Flamingo Motel, Holiday Motel, Rainbow Motel, Palo Alto Hotel,
Paradise Hotel, Mayfair Hotel, Siesta Court, Sun Valley Hotel, Springfield Hotel, New Palace
Hotel, Hotel del Mar Longbeach Hotel and Ritz Motel.
2
U.S. V. Salaveria (1918), 39 Phil. 102, at p. 111. There was an affirmation of the
presumption of validity of municipal ordinance as announced in the leading Salaveria
decision in Eboña v. Daet, (1950) 85 Phil. 369.
3
282 US 251, 328, January 5, 1931.
4
Cf. Ichong v. Hernandez, (1957) 101 Phil. 1155, at p. 1163. Also: "To Frankfurter the police
power, true to its etymology is the power to shape policy. It defies legal definition; as a
response to the dynamic aspects of society, it cannot be reduced to a constitutional
formula. The law must be sensitive to life; in resolving cases, it must not fall back upon
sterile claims; its judgments are not derived from an abstract duel between liberty and the
police power. Instead, in a world of trusts and unions and large-scale industry, it must
meet the challenge of drastic social change. For him as for Holmes, 'society is more than
bargain and business' and the jurist's art rises to no higher peak than in vindicating
interests not represented by the items in a balance-sheet. In a progressive society, new
interests emerge, new attitudes appeal, social consciousness quickens. In the face of the
unknown one cannot choose with certainty. Nor as yet, has the whole of truth been
brought up from its bottomless well and how fragile in scientific proof is the ultimate
validity of any particular economic adjustment. Social development is a process of trial and
error; in the making of policy the fullest possible opportunity must be given for the play of
the human mind. If Congress or legislature does not regulate, laissez faire — not the
individual — must be the regulator. (Hamilton, Preview of a Justice (1939) 48 Yale Law
Journal, 819).
5
Noble state Bank v. Haskell, 219 U.S. 412.
6
U.S. v. Gomez-Jesus, (1915) 31 Phil. 218.
7
Rubi v. Provincial Board, (1918) 39 Phil. 660.
8
U.S. vs. Giner Cruz, (1918) 38 Phil. 677.
9
U.S. vs. Rodriguez, (1918) 38 Phil. 759. See also Sarmiento v. Belderol, L-15719, May 31,
1961; Lapera v. Vicente, L-18102, June 30, 1962.
10
U.S. v. Pacis, (1915) 31 Phil. 524.
11
U.S. vs. Espiritu-Santo, (1912) 23 Phil. 610; U.S. vs. Joson, (1913) 26 Phil. 1; People vs.
Chan Hong, (1938) 65 Phil. 625.
12
U.S. v. Tamparong, (1915) 31 Phil. 321.
13
U.S. v. Salaveria, (1918) 39 Phil. 102.
14
Uy Ha v. The City Mayor, L-14149, May 30, 1969; Miranda v. City of Manila, L-17252, May
31, 1961.
15
U.S. v. Ten Yu, (1912) 24 Phil. 1.
16
There is no occasion to consider even cursorily the alleged invasion of the right of privacy
or the prohibition against self-incrimination. Petitioners obviously are not the proper
parties to do so. Nor may such an incurable defect be remedied by an accommodating
intervenor "who has always taken advantage of as he exclusively relies on, the facilities,
services and accommodations offered by petitioner-motels. A general merchant, doing
business not only in Baguio City but in the City of Manila, has no legitimate cause for
complaint. At least, not according to the case as it has been developed.
17
Frankfurter, Mr. Justice Holmes and the Supreme Court, (1938) pp. 32- 33.
18
Frankfurter, Hannah v. Larche, (1960) 363 U.S. 420, at 487.
19
Cafeteria Workers v. McElroy, (1961) 367 U.S. 1230.
20
Bartkus v. Illinois, (1959) 359 U.S. 121.
21
Pearson v. McGraw, (1939) 308 U.S. 313.
22
Cu Unjieng v. Postpone, (1922) 42 Phil. 818, 828.
23
Citing Swarth v. People, 109 Ill. 621; Dennehy v. City of Chicago, 120 Ill. 627; 12 N.E., 227;
United States Distilling Co. v. City of Chicago, 112 Ill. 19: Drew County v. Bennet, 43 Ark.
364; Merced County v. Fleming, Ill Cal. 46; 43 Pac. 392; Williams v. City Council of West
Point, 68 Ga. 816; Cheny v. Shellbyville, 19 Ind. 84; Wiley y. Owens, 39 Ind. 429; Sweet v.
City of Wabash, 41 Ind. 7; Jones v. Grady, 25 La. Ann. 586; Goldsmith v. City of New
Orleans, 31 La. Ann. 646; People ex rel., Cramer v. Medberry, 39 N.Y.S. 207; 17 Misc. Rep.,
8 ; McGuigan v. Town of Belmont, 89 Wis. 637; 62 N.W., 421; Ex parte Burnett 30 Ala. 461;
Craig v. Burnett 32 Ala., 728, and Muhlenbrinck v. Long Branch Commissioner, 42 N.J.L.
364; 36 Am. Rep., 518. At pp. 829-830.
24
98 Phil. 148 (1955), citing Great Atl & Pac. Tea Co. v Grosjean, 301 U.S. 412, 81 L. Ed.
1193; U.S. v. Butler, 297 US 1, 80 L. Ed 477; M'Culloch v. Maryland, 4 Wheat 316, 4 L. Ed
579. The Lutz decision was followed in Republic v. Bacolod Murcia Milling, L-19824, July 9,
1966.
25
Ormoc Sugar Co. v. Municipal Board of Ormoc City, L-24322, July 21, 1967.
26
Physical Therapy Organization v. Municipal Board, (1957) 101 Phil. 1142.
27
Co Kian & Lee Ban v. City of Manila, (1955) 96 Phil. 649, 654, citing City of New Orleans v.
Stafford, 27 L. Ann. 417.
28
Rubi v. Provincial Board, (1919) 39 Phil. 660, at 706, citing Hall v. Geiger-Jones (1916),
242 U.S. 539; Hardie-Tynes Manufacturing Co. vs. Cruz (1914), 189 Ala. 66.
29
Calalang v. Williams (1940), 70 Phil. 726, at 733-734.
30
46 Phil. 440 (1924). The Philippines was then under American sovereignty, American
Supreme Court decisions having thus an obligatory effect. No alternative was left to this
Court except to follow the then controlling decision in Adkins v. Children's Hospital (1924),
261 U.S. 525, which subsequently was overruled in West Coast Hotel v. Parrish (1937), 300
U.S. 379.
31
Antamok Goldfields Mining Co. v. Court (1940), 70 Phil. 340, at 360, quoting a concurring
opinion of Justice Laurel in Ang Tibay v. Court, G.R. No. 46496.
32
Cf. "In weighing arguments of the parties it is important to distinguish between the due
process clause of the Fourteenth Amendment as an instrument for transmitting the
principles of the First Amendment and those cases in which it is applied for its own sake.
The test of legislation which collides with the Fourteenth Amendment because it also
collides with the principles of the First, is much more definite than the test when only the
Fourteen is involved. Much of the vagueness of the due process clause disappears when
the specific prohibition of the First become its standard. The right of a State to regulate,
for example, a public utility may well include, so far as the due process test is concerned,
power to impose all of the restrictions which a legislature may have a 'rational basis' for
adopting. But freedoms of speech and of press, of assembly, and of worship may well be
 infringed on such slender grounds. They are susceptible of restriction only to prevent an
immediate danger to interests which the state may lawfully protect." (West Virginia State
Bd. of Edu v. Barnette, (1942), 319 U.S. 624, at 639).
33
269 U.S. 385 (1926).
34
17 L. ed. 2d 149, Nov. 14, 1966.
35
Roschen v. Ward (1929), 279 U. S. 337,339.

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Rubi vs Provincial Board

on December 12, 2011

Political Law – Delegation of Powers

Rubi and various other Manguianes in the province of Mindoro were ordered by the provincial governor
of Mindoro to remove their residence from their native habitat and to established themselves on a
reservation at Tigbao in the province of Mindoro and to remain there, or be punished by imprisonment
if they escaped. Manguianes had been ordered to live in a reservation made to that end and for
purposes of cultivation under certain plans. The Manguianes are a Non-Christian tribe with a very low
culture. These reservations, as appears from the resolution of the Provincial Board, extends over an area
of 800 hectares of land, which is approximately 2000 acres, on which about 300 Manguianes are
confined. One of the Manguianes, Dabalos, escaped from the reservation and was taken in hand by the
provincial sheriff and placed in prison at Calapan, solely because he escaped from the reservation. An
application for habeas corpus was made on behalf of Rubi and other Manguianes of the province,
alleging that by virtue of the resolution of the provincial board of Mindoro creating the reservation, they
had been illegally deprived of their liberty. In this case the validity of section 2145 of the Administrative
Code, reading: “With the prior approval of the Department Head, the provincial governor of any
province in which non-Christian inhabitants are found is authorized, when such a course is deemed
necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites
on unoccupied public lands to be selected by him and approved by the provincial board,” was
challenged.

ISSUE: Whether or not the said law is constitutional.

HELD: By a vote of five to four, the Supreme Court sustained the constitutionality of this section of the
Administrative Code. Among other things, it was held that the term “non-Christian” should not be given
a literal meaning or a religious signification, but that it was intended to relate to degrees of civilization.
The term “non-Christian” it was said, refers not to religious belief, but in a way to geographical area, and
more directly to natives of the Philippine Islands of a low grade of civilization. On the other hand, none
of the provisions of the Philippine Organic Law could have had the effect of denying to the Government
of the Philippine Islands, acting through its Legislature, the right to exercise that most essential,
insistent, and illimitable of powers, the sovereign police power, in the promotion of the general welfare
and the public interest. when to advance the public welfare, the law was found to be a legitimate
exertion of the police power, And it is unnecessary to add that the prompt registration of titles to land
in the Philippines constitutes an advancement of the public interests, for, besides promoting peace and
good order among landowners in particular and the people in general, it helps increase the industries of
the country, and makes for the development of the natural resources, with the consequent progress of
the general prosperity. And these ends are pursued in a special manner by the State through the
exercise of its police power. The Supreme Court held that the resolution of the provincial board of
Mindoro was neither discriminatory nor class legislation, and stated among other things: “. . . one
cannot hold that the liberty of the citizen is unduly interfered with when the degree of civilization of the
Manguianes is considered. They are restrained for their own good and the general good of the
Philippines. Nor can one say that due process of law has not been followed. To go back to our definition
of due process of law and equal protection of the laws, there exists a law; the law seems to be
reasonable; it is enforced according to the regular methods of procedure prescribed; and it applies alike
to all of a class.”
Read full text here.

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Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-14078 March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs,

vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.

D. R. Williams & Filemon Sotto for plaintiff.

Office of the Solicitor-General Paredes for defendant.

MALCOLM, J.:

In one of the cases which denote a landmark in American Constitutional History

(Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of
American jurisprudence, began his opinion (relating to the status of an Indian) with words
which, with a slight change in phraseology, can be made to introduce the present opinion
— This cause, in every point of view in which it can be placed, is of the deepest interest.
The legislative power of state, the controlling power of the constitution and laws, the
rights if they have any, the political existence of a people, the personal liberty of a citizen,
are all involved in the subject now to be considered.

To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed
first, to introduce the facts and the issues, next to give a history of the so called "non-
Christians," next to compare the status of the "non-Christians" with that of the American
Indians, and, lastly, to resolve the constitutional questions presented.

I. INTRODUCTION.

This is an application for habeas corpus in favor of Rubi and other Manguianes of the
Province of Mindoro. It is alleged that the Maguianes are being illegally deprived of their
liberty by the provincial officials of that province. Rubi and his companions are said to be
held on the reservation established at Tigbao, Mindoro, against their will, and one Dabalos
is said to be held under the custody of the provincial sheriff in the prison at Calapan for
having run away form the reservation.

The return of the Solicitor-General alleges:

1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25
which is as follows:

The provincial governor, Hon. Juan Morente, Jr., presented the following resolution:

"Whereas several attempts and schemes have been made for the advancement of the
non-Christian people of Mindoro, which were all a failure,
"Whereas it has been found out and proved that unless some other measure is taken for
the Mangyan work of this province, no successful result will be obtained toward educating
these people.

"Whereas it is deemed necessary to obliged them to live in one place in order to make a
permanent settlement,

"Whereas the provincial governor of any province in which non-Christian inhabitants are
found is authorized, when such a course is deemed necessary in the interest of law and
order, to direct such inhabitants to take up their habitation on sites on unoccupied public
lands to be selected by him and approved by the provincial board.

"Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake Naujan
is a place most convenient for the Mangyanes to live on, Now, therefore be it

"Resolved, that under section 2077 of the Administrative Code, 800 hectares of public land
in the sitio of Tigbao on Naujan Lake be selected as a site for the permanent settlement of
Mangyanes in Mindoro subject to the approval of the Honorable Secretary of the Interior,
and

"Resolved further, That Mangyans may only solicit homesteads on this reservation
providing that said homestead applications are previously recommended by the provincial
governor."

2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was
approved by the Secretary of the Interior of February 21, 1917.

3. That on December 4, 1917, the provincial governor of Mindoro issued executive order
No. 2 which says:

"Whereas the provincial board, by Resolution No. 25, current series, has selected a site in
the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes in
Mindoro.

"Whereas said resolution has been duly approve by the Honorable, the Secretary of the
Interior, on February 21, 1917.

"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the
provisions of section 2145 of the revised Administrative Code, do hereby direct that all the
Mangyans in the townships of Naujan and Pola and the Mangyans east of the Baco River
including those in the districts of Dulangan and Rubi's place in Calapan, to take up their
habitation on the site of Tigbao, Naujan Lake, not later than December 31, 1917.

"Any Mangyan who shall refuse to comply with this order shall upon conviction be
imprisoned not exceed in sixty days, in accordance with section 2759 of the revised
Administrative Code."

4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the
executive order of the governor of the same province copied in paragraph 3, were
necessary measures for the protection of the Mangyanes of Mindoro as well as the
protection of public forests in which they roam, and to introduce civilized customs among
them.

5. That Rubi and those living in his rancheria have not fixed their dwelling within the
reservation of Tigbao and are liable to be punished in accordance with section 2759 of Act
No. 2711.

6. That the undersigned has not information that Doroteo Dabalos is being detained by the
sheriff of Mindoro but if he is so detained it must be by virtue of the provisions of articles
Nos. 2145 and 2759 of Act No. 2711.

It thus appears that the provincial governor of Mindoro and the provincial board thereof
directed the Manguianes in question to take up their habitation in Tigbao, a site on the
shore of Lake Naujan, selected by the provincial governor and approved by the provincial
board. The action was taken in accordance with section 2145 of the Administrative Code of
1917, and was duly approved by the Secretary of the Interior as required by said action.
Petitioners, however, challenge the validity of this section of the Administrative Code. This,
therefore, becomes the paramount question which the court is called upon the decide.

Section 2145 of the Administrative Code of 1917 reads as follows:

SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor. —

With the prior approval of the Department Head, the provincial governor of any province
in which non-Christian inhabitants are found is authorized, when such a course is deemed
necessary in the interest of law and order, to direct such inhabitants to take up their
habitation on sites on unoccupied public lands to be selected by him an approved by the
provincial board.

In connection with the above-quoted provisions, there should be noted section 2759 of the
same Code, which read as follows:

SEC. 2759. Refusal of a non-Christian to take up appointed habitation. — Any non-Christian

who shall refuse to comply with the directions lawfully given by a provincial governor,
pursuant to section two thousand one hundred and forty-five of this Code, to take up
habitation upon a site designated by said governor shall upon conviction be imprisonment
for a period not exceeding sixty days.

The substance of what is now found in said section 2145 is not new to Philippine law. The
genealogical tree of this section, if we may be permitted to use such terminology, would
read: Section 2077, Administrative Code of 1916; section 62, Act No. 1397; section 2 of
various special provincial laws, notably of Act No. 547, specifically relating to the
Manguianes; section 69, Act No. 387.

Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as
will later be disclosed, is also found in varying forms in other laws of the Philippine Islands.
In order to put the phrase in its proper category, and in order to understand the policy of
the Government of the Philippine Islands with reference to the uncivilized elements of the
Islands, it is well first of all to set down a skeleton history of the attitude assumed by the
authorities towards these "non-Christians," with particular regard for the legislation on the
subject.

II. HISTORY.

A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.

The most important of the laws of the Indies having reference to the subject at hand are
compiled in Book VI, Title III, in the following language.

LAW I.

The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip II
at Toledo, on February 19, 1560. In the forest of Segovia on September 13, 1565. In the
Escorial on November 10, 1568. Ordinance 149 of the poblaciones of 1573. In San Lorenzo,
on May 20, 1578,

THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).

In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical
law, and in order that they may forget the blunders of their ancient rites and ceremonies
to the end that they may live in harmony and in a civilized manner, it has always been
endeavored, with great care and special attention, to use all the means most convenient to
the attainment of these purposes. To carry out this work with success, our Council of the
Indies and other religious persons met at various times; the prelates of new Spain
assembled by order of Emperor Charles V of glorious memory in the year one thousand
five hundred and forty-six — all of which meetings were actuated with a desire to serve
God an our Kingdom. At these meetings it was resolved that indios be made to live in
communities, and not to live in places divided and separated from one another by sierras
and mountains, wherein they are deprived of all spiritual and temporal benefits and
wherein they cannot profit from the aid of our ministers and from that which gives rise to
those human necessities which men are obliged to give one another. Having realized that
convenience of this resolution, our kings, our predecessors, by different orders, have
entrusted and ordered the viceroys, presidents, and governors to execute with great care
and moderation the concentration of the indios intoreducciones; and to deal with their
doctrine with such forbearance and gentleness, without causing inconveniences, so that
those who would not presently settle and who would see the good treatment and the
protection of those already in settlements would, of their own accord, present themselves,
and it is ordained that they be not required to pay taxes more than what is ordered.
Because the above has been executed in the greater part of our Indies, we hereby order
and decree that the same be complied with in all the remaining parts of the Indies, and
the encomederos shall entreat compliance thereof in the manner and form prescribed by
the laws of this title.

xxx xxx xxx

LAW VIII.

Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.

THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW.

The places wherein the pueblos and reducciones shall be formed should have the facilities
of waters. lands, and mountains, ingress and egress, husbandry and passageway of one
league long, wherein the indios can have their live stock that they may not be mixed with
those of the Spaniards.

LAW IX.

Philip II at Toledo, on February 19, 1956.

THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY

HELD BY THEM.

With more good-will and promptness, the indios shall be concentrated in reducciones.
Provided they shall not be deprived of the lands and granaries which they may have in the
places left by them. We hereby order that no change shall be made in this respect, and
that they be allowed to retain the lands held by them previously so that they may cultivate
them and profit therefrom.

xxx xxx xxx

LAW XIII.

THE SAME AS ABOVE.

THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY,
OR COURT.

No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or
to remove thepueblos or the reducciones once constituted and founded, without our
express order or that of the viceroy, president, or the royal district court, provided,
however, that the encomenderos, priests, or indios request such a change or consent to it
by offering or giving information to that en. And, because these claims are often made for
private interests and not for those of the indios, we hereby order that this law be always
complied with, otherwise the change will be considered fraudulently obtained. The penalty
of one thousand pesos shall be imposed upon the judge or encomendero who should
violate this law.

LAW XV.

Philip III at Madrid, on October 10, 1618.

THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE

"INDIOS."

We order that in each town and reduccion there be a mayor, who should be an indio of the
same reduccion; if there be more than eighty houses, there should be two mayors and two
aldermen, also indios; and, even if the town be a big one, there should, nevertheless, be
more than two mayors and four aldermen, If there be less than eighty indios but not less
than forty, there should be not more than one mayor and one alderman, who should
annually elect nine others, in the presence of the priests , as is the practice in town
inhabited by Spaniards and indios.

LAW XXI.

Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8,
1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip IV, at
Madrid, on October 1 and December 17, 1646. For this law and the one following, see Law
I, Tit. 4, Book 7.

THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES,
"MESTIZOS," AND MULATTOES.

We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live in
the reduccionesand towns and towns of the indios, because it has been found that some
Spaniards who deal, trade, live, and associate with the indios are men of troublesome
nature, of dirty ways of living; robbers, gamblers, and vicious and useless men; and, to
avoid the wrongs done them, the indios would leave their towns and provinces; and the
negroes, mestizos, and mulattoes, besides maltreating them and utilizing their services,
contaminate them with their bad customs, idleness, and also some of their blunders and
vices which may corrupt and pervert the goal which we desire to reach with regard to their
salvation, increase, and tranquillity. We hereby order the imposition of grave penalties
upon the commission of the acts above-mentioned which should not be tolerated in the
towns, and that the viceroys, presidents, governors, and courts take great care in
executing the law within their powers and avail themselves of the cooperation of the
ministers who are truly honest. As regards the mestizos and Indian and Chinese half-
breeds (zambaigos), who are children of indias and born among them, and who are to
inherit their houses andhaciendas, they all not be affected by this law, it appearing to be a
harsh thing to separate them from their parents. (Law of the Indies, vol. 2, pp. 228, 229,
230, 231.)

A clear exposition of the purposes of the Spanish government, in its efforts to improve the
condition of the less advanced inhabitants of the Islands by concentrating them in
"reducciones," is found in the Decree of the Governor-General of the Philippine Islands of
January 14, 1881, reading as follows:

It is a legal principle as well as a national right that every inhabitant of a territory

recognized as an integral part of a nation should respect and obey the laws in force
therein; while, on other hand, it is the duty to conscience and to humanity for all
governments to civilize those backward races that might exist in the nation, and which
living in the obscurity of ignorance, lack of all the nations which enable them to grasp the
moral and material advantages that may be acquired in those towns under the protection
and vigilance afforded them by the same laws.

It is equally highly depressive to our national honor to tolerate any longer the separation
and isolation of the non-Christian races from the social life of the civilized and Christian
towns; to allow any longer the commission of depredations, precisely in the Island of
Luzon wherein is located the seat of the representative of the Government of the,
metropolis.

It is but just to admit the fact that all the governments have occupied themselves with this
most important question, and that much has been heretofore accomplished with the help
and self-denial of the missionary fathers who have even sacrificed their lives to the end
that those degenerate races might be brought to the principles of Christianity, but the
means and the preaching employed to allure them have been insufficient to complete the
work undertaken. Neither have the punishments imposed been sufficient in certain cases
and in those which have not been guarded against, thus giving and customs of isolation.

As it is impossible to consent to the continuation of such a lamentable state of things,

taking into account the prestige which the country demands and the inevitable duty which
every government has in enforcing respect and obedience to the national laws on the part
of all who reside within the territory under its control, I have proceeded in the premises by
giving the most careful study of this serious question which involves important interests
for civilization, from the moral and material as well as the political standpoints. After
hearing the illustrious opinions of all the local authorities, ecclesiastics, and missionaries of
the provinces of Northern Luzon, and also after finding the unanimous conformity of the
meeting held with the Archbishop of Manila, the Bishops of Jaro and Cebu, and the
provincial prelates of the orders of the Dominicans, Agustinians, Recoletos, Franciscans,
and Jesuits as also of the meeting of the Council of Authorities, held for the object so
indicated, I have arrived at an intimate conviction of the inevitable necessity of proceeding
in a practical manner for the submission of the said pagan and isolated races, as well as of
the manner and the only form of accomplishing such a task.

For the reasons above stated and for the purpose of carrying out these objects, I hereby
promulgate the following:

DECREE.

1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be
governed by the common law, save those exceptions prescribed in this decree which are
bases upon the differences of instructions, of the customs, and of the necessities of the
different pagan races which occupy a part of its territory.

2. The diverse rules which should be promulgated for each of these races — which may be
divided into three classes; one, which comprises those which live isolated and roaming
about without forming a town nor a home; another, made up of those subdued pagans
who have not as yet entered completely the social life; and the third, of those mountain
and rebellious pagans — shall be published in their respective dialects, and the officials,
priests, and missionaries of the provinces wherein they are found are hereby entrusted in
the work of having these races learn these rules. These rules shall have executive
character, beginning with the first day of next April, and, as to their compliance, they must
be observed in the manner prescribed below.

3. The provincial authorities in conjunction with the priests shall proceed, from now on,
with all the means which their zeal may suggest to them, to the taking of the census of the
inhabitants of the towns or settlement already subdued, and shall adopt the necessary
regulations for the appointment of local authorities, if there be none as yet; for the
construction of courts and schools, and for the opening or fixing up of means of
communication, endeavoring, as regards the administrative organization of the said towns
or settlements, that this be finished before the first day of next July, so that at the
beginning of the fiscal year they shall have the same rights and obligations which affect the
remaining towns of the archipelago, with the only exception that in the first two years they
shall not be obliged to render personal services other than those previously indicated.

4. So long as these subdued towns or settlements are located infertile lands appropriate
for cultivation, the inhabitants thereof shall not be obliged to move their dwelling-houses;
and only in case of absolute necessity shall a new residence be fixed for them, choosing for
this purpose the place most convenient for them and which prejudices the least their
interest; and, in either of these cases, an effort must be made to establish their homes
with the reach of the sound of the bell.

5. For the protection and defense of these new towns, there shall be established an armed
force composed precisely of native Christian, the organization and service of which shall be
determined in a regulations based upon that of the abolished Tercios de Policia (division of
the Guardia Civil).

6. The authorities shall see to it that the inhabitants of the new towns understand all the
rights and duties affecting them and the liberty which they have as to where and now they
shall till their lands and sell the products thereof, with the only exception of the tobacco
which shall be bought by the Hacienda at the same price and conditions allowed other
producers, and with the prohibition against these new towns as well as the others from
engaging in commerce of any other transaction with the rebellious indios, the violation of
which shall be punished with deportation.

7. In order to properly carry out this express prohibition, the limits of the territory of the
rebellious indiosshall be fixed; and whoever should go beyond the said limits shall be
detained and assigned governmentally wherever convenient.

8. For the purpose of assisting in the conversion of the pagans into the fraternity of the
Catholic Church, all by this fact along be exempt for eight years from rendering personal
labor.

9. The authorities shall offer in the name of the State to the races not subdued (aetas and
mountains igorrots the following advantages in returns for their voluntary submission: to
live in towns; unity among their families; concession of good lands and the right to
cultivate them in the manner they wish and in the way them deem most productive;
support during a year, and clothes upon effecting submission; respect for their habits and
customs in so far as the same are not opposed to natural law; freedom to decide of their
own accord as to whether they want to be Christians or not; the establishment of missions
and families of recognized honesty who shall teach, direct, protect, and give them security
and trust them; the purchase or facility of the sale of their harvests; the exemption from
contributions and tributes for ten years and from thequintas (a kind of tax) for twenty
years; and lastly, that those who are governed by the local authorities as the ones who
elect such officials under the direct charge of the authorities of the province or district.

10. The races indicated in the preceding article, who voluntarily admit the advantages
offered, shall, in return, have the obligation of constituting their new towns, of
constructing their town hall, schools, and country roads which place them in
communication with one another and with the Christians; provided, the location of these
towns be distant from their actual residences, when the latter do not have the good
conditions of location and cultivations, and provided further the putting of families in a
place so selected by them be authorized in the towns already constituted.

11. The armed force shall proceed to the prosecution and punishment of the tribes, that,
disregarding the peace, protection, and advantages offered them, continue in their
rebellious attitude on the first of next April, committing from now on the crimes and
vexations against the Christian towns; and for the this purposes, the Captain General's
Office shall proceed with the organization of the divisions of the Army which, in
conjunction with the rural guards (cuadrilleros), shall have to enter the territory of such
tribes. On the expiration of the term, they shall destroy their dwelling-houses, labors, and
implements, and confiscate their products and cattle. Such a punishment shall necessarily
be repeated twice a year, and for this purpose the military headquarters shall immediately
order a detachment of the military staff to study the zones where such operations shall
take place and everything conducive to the successful accomplishment of the same.

12. The chiefs of provinces, priests, and missioners, local authorities, and other
subordinates to my authorities, local authorities, and other subordinates to may authority,
civil as well as military authorities, shall give the most effective aid and cooperation to the
said forces in all that is within the attributes and the scope of the authority of each.

13. With respect to the reduccion of the pagan races found in some of the provinces in the
southern part of the Archipelago, which I intend to visit, the preceding provisions shall
conveniently be applied to them.

14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a

council or permanent commission which shall attend to and decide all the questions
relative to the application of the foregoing regulations that may be brought to it for
consultations by the chiefs of provinces and priests and missionaries.

15. The secondary provisions which may be necessary, as a complement to the foregoing,
in brining about due compliance with this decree, shall be promulgated by the respective
official centers within their respective jurisdictions. (Gaceta de Manila, No. 15) (Diccionario
de la Administracion, vol. 7, pp. 128-134.)

B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.

Ever since the acquisition of the Philippine Islands by the United States, the question as to
the best method for dealing with the primitive inhabitants has been a perplexing one.

1. Organic law.

The first order of an organic character after the inauguration of the American Government
in the Philippines was President McKinley's Instructions to the Commission of April 7, 1900,
later expressly approved and ratified by section 1 of the Philippine Bill, the Act of Congress
of July 1, 1902. Portions of these instructions have remained undisturbed by subsequent
congressional legislation. One paragraph of particular interest should here be quoted,
namely:

In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same
course followed by Congress in permitting the tribes of our North American Indians to
maintain their tribal organization and government and under which many of these tribes
are now living in peace and contentment, surrounded by civilization to which they are
unable or unwilling to conform. Such tribal governments should, however, be subjected to
wise and firm regulation; and, without undue or petty interference, constant and active
effort should be exercised to prevent barbarous practices and introduce civilized customs.

Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an
Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill was to
provide for a legislative body and, with this end in view, to name the prerequisites for the
organization of the Philippine Assembly. The Philippine Legislature, composed of the
Philippine Commission and the Philippine Assembly, was to have jurisdiction over the
Christian portion of the Islands. The Philippine Commission was to retain exclusive
jurisdiction of that part of said Islands inhabited by Moros or other non-Christian tribes.

The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of
Congress of August 29, 1916, commonly known as the Jones Law. This transferred the
exclusive legislative jurisdiction and authority theretofore exercised by the Philippine
Commission, to the Philippine Legislature (sec. 12). It divided the Philippine Islands into
twelve senatorial districts, the twelfth district to be composed of the Mountain Province,
Baguio, Nueva Vizcaya, and the Department of Mindanao and Sulu. The Governor-General
of the Philippine Islands was authorized to appoint senators and representatives for the
territory which, at the time of the passage of the Jones Law, was not represented in the
Philippine Assembly, that is, for the twelfth district (sec. 16). The law establish a bureau to
be known as the "Bureau of non-Christian Tribes" which shall have general supervision
over the public affairs of the inhabitants which are represented in the Legislature by
appointed senators and representatives( sec. 22).

Philippine organic law may, therefore, be said to recognized a dividing line between the
territory not inhabited by Moros or other non-Christian tribes, and the territory which
Moros or other non-Christian tribes, and the territory which is inhabited by Moros or other
non-Christian tribes.

2. Statute law.

Local governments in the Philippines have been provided for by various acts of the
Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49
concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act
no. 83, the Provincial Government Act; Act No. 183, the Character of the city of Manila; Act
No. 7887, providing for the organization and government of the Moro Province; Act No.
1396, the Special Provincial Government Act; Act No. 1397, the Township Government Act;
Act No. 1667, relating to the organization of settlements; Act No. 1963, the Baguio
charger; and Act No. 2408, the Organic Act of the Department of Mindanao and Sulu. The
major portion of these laws have been carried forward into the Administrative Codes of
1916 an d1917.

Of more particular interest are certain special laws concerning the government of the
primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9, 1902, by
the United States Philippine Commission, having reference to the Province of Nueva
Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145,
4568, 1306 were enacted for the provinces of Abra, Antique, Bataan, Ilocos Norte, Ilocos
Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya, Pangasinan, Paragua
(Palawan), Tarlac, Tayabas, and Zambales. As an example of these laws, because referring
to the Manguianes, we insert Act No. 547:

No. 547. — AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL GOVERNMENTS
FOR THE MANGUIANES IN THE PROVINCE OF MINDORO.

By authority of the United States, be it enacted by the Philippine Commission, that:

SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed
sufficiently in civilization to make it practicable to bring them under any form of municipal
government, the provincial governor is authorized, subject to the approval of the Secretary
of the Interior, in dealing with these Manguianes to appoint officers from among them, to
fix their designations and badges of office, and to prescribe their powers and duties:
Provided, That the powers and duties thus prescribed shall not be in excess of those
conferred upon township officers by Act Numbered Three hundred and eighty-seven
entitled "An Act providing for the establishment of local civil Governments in the
townships and settlements of Nueva Vizcaya."

SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is
further authorized, when he deems such a course necessary in the interest of law and
order, to direct such Manguianes to take up their habitation on sites on unoccupied public
lands to be selected by him and approved by the provincial board. Manguianes who refuse
to comply with such directions shall upon conviction be imprisonment for a period not
exceeding sixty days.

SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to
acquire the knowledge and experience necessary for successful local popular government,
and his supervision and control over them shall be exercised to this end, an to the end that
law and order and individual freedom shall be maintained.

SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of
Manguianes has advanced sufficiently to make such a course practicable, it may be
organized under the provisions of sections one to sixty-seven, inclusive, of Act Numbered
three hundred and eighty-seven, as a township, and the geographical limits of such
township shall be fixed by the provincial board.

SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the
same is hereby expedited in accordance with section two of 'An Act prescribing the order
of procedure by the Commission in the enactment of laws,' passed September twenty-
sixth, nineteen hundred.

SEC. 6. This Act shall take effect on its passage.

Enacted, December 4, 1902.

All of these special laws, with the exception of Act No. 1306, were repealed by Act No.
1396 and 1397. The last named Act incorporated and embodied the provisions in general
language. In turn, Act No. 1397 was repealed by the Administrative Code of 1916. The two
Administrative Codes retained the provisions in questions.

These different laws, if they of the non-Christian inhabitants of the Philippines and a
settled and consistent practice with reference to the methods to be followed for their
advancement.

C. TERMINOLOGY.

The terms made use of by these laws, organic and statutory, are found in varying forms.

"Uncivilized tribes" is the denomination in President McKinley's instruction to the

Commission.

The most commonly accepted usage has sanctioned the term "non-Christian tribes." These
words are to be found in section 7 of the Philippine Bill and in section 22 of the Jones Law.
They are also to be found in Act No. 253 of the Philippines Commission, establishing a
Bureau of non-Christian Tribes and in Act No. 2674 of the Philippine Legislature, carried
forward into sections 701-705 of the Administrative Code of 1917, reestablishing this
Bureau. Among other laws which contain the phrase, there can be mentioned Acts Nos.
127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.

"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have

been the favorite nomenclature, in lieu of the unpopular word "tribes," since the coming
into being of a Filipinized legislature. These terms can be found in sections 2076, 2077,
2390, 2394, Administrative Code of 1916; sections 701-705, 2145, 2422, 2426,
Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674 of the Philippine
Legislatures, as well as in Act No. 1667 of the Philippine Commission.

The Administrative Code specifically provides that the term "non-Christian" shall include
Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec. 2561,
Administrative Code of 1916, taken from Act No. 2408, sec. 3.)

D. MEANING OF TERM "NON-CHRISTIAN."

If we were to follow the literal meaning of the word "non-Christian," it would of course
result in giving to it a religious signification. Obviously, Christian would be those who
profess the Christian religion, and non-Christians, would be those who do not profess the
Christian religion. In partial corroboration of this view, there could also be cited section
2576 of the last Administrative Code and certain well-known authorities, as Zuñiga,
"Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt, "Philippine Tribes and
Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See Blair &
Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez,
"Philippine Progress prior to 1898," vol. I. p. 107.)

Not content with the apparent definition of the word, we shall investigate further to
ascertain what is its true meaning.

In one sense, the word can have a geographical signification. This is plainly to be seen by
the provisions of many laws. Thus, according to the Philippine Bill, the authority of the
Philippine Assembly was recognized in the "territory" of the Islands not inhabited by
Moros or other non-Christian tribes. Again, the Jones Law confers similar recognition in the
authorization of the twelfth senatorial district for the "territory not now represented in the
Philippine Assembly." The Philippines Legislature has, time and again, adopted acts making
certain other acts applicable to that "part" of the Philippine Islands inhabited by Moros or
other non-Christian tribes.

Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The
first section of this article, preceding section 2145, makes the provisions of the article
applicable only in specially organized provinces. The specially organized provinces are the
Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and Palawan. These are the
provinces to which the Philippine Legislature has never seen fit to give all the powers of
local self-government. They do not, however, exactly coincide with the portion of the
Philippines which is not granted popular representation. Nevertheless, it is still a
geographical description.

It is well-known that within the specially organized provinces, there live persons some of
who are Christians and some of whom are not Christians. In fact, the law specifically
recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.)

If the religious conception is not satisfactory, so against the geographical conception is

likewise inadquate. The reason it that the motive of the law relates not to a particular
people, because of their religion, or to a particular province because of its location, but the
whole intent of the law is predicated n the civilization or lack of civilization of the
inhabitants.

At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually

introduce the term. "The so-called non-Christian" is a favorite expression. The Secretary of
the Interior who for so many years had these people under his jurisdiction, recognizing the
difficulty of selecting an exact designation, speaks of the "backward Philippine peoples,
commonly known as the 'non-Christian tribes."' (See Hearings before the Committee on
the Philippines, United States Senate, Sixty-third Congress, third session on H.R. 18459, An
Act to declare the purpose of the People of the United States as to the future political
status of the Philippine Islands and to provide a more autonomous government for the
Islands, pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906, circulated by
the Executive Secretary.)

The idea that the term "non-Christian" is intended to relate to degree of civilization, is
substantiated by reference to legislative, judicial, and executive authority.

The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections
701 et seq, and sections 2422 et seq, of the Administrative Code of 1917. For instance, Act
No. 253 charged the Bureau of non-Christian tribes to conduct "systematic investigations
with reference to non-Christian tribes . . . with special view to determining the most
practicable means for bringing about their advancement in civilization and material
property prosperity."

As authority of a judicial nature is the decision of the Supreme Court in the case of United
States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect
of a tribal marriage in connection with article 423 of the Penal code concerning the
husband who surprises his wife in the act of adultery. In discussing the point, the court
makes use of the following language:

. . . we are not advised of any provision of law which recognizes as legal a tribal marriage
of so-called non-Christians or members of uncivilized tribes, celebrated within that
province without compliance with the requisites prescribed by General Orders no. 68. . . .
We hold also that the fact that the accused is shown to be a member of an uncivilized
tribe, of a low order of intelligence, uncultured and uneducated, should be taken into
consideration as a second marked extenuating circumstance.

Of much more moment is the uniform construction of execution officials who have been
called upon to interpret and enforce the law. The official who, as a member of the
Philippine Commission, drafted much of the legislation relating to the so-called Christians
and who had these people under his authority, was the former Secretary of the Interior.
Under date of June 30, 1906, this official addressed a letter to all governor of provinces,
organized under the Special Provincial Government Act, a letter which later received
recognition by the Governor-General and was circulated by the Executive Secretary,
reading as follows:

Sir: Within the past few months, the question has arisen as to whether people who were
originally non-Christian but have recently been baptized or who are children of persons
who have been recently baptized are, for the purposes of Act 1396 and 1397, to be
considered Christian or non-Christians.

It has been extremely difficult, in framing legislation for the tribes in these islands which
are not advanced far in civilization, to hit upon any suitable designation which will fit all
cases. The number of individual tribes is so great that it is almost out of the question to
enumerate all of them in an Act. It was finally decided to adopt the designation 'non-
Christians' as the one most satisfactory, but the real purpose of the Commission was not so
much to legislate for people having any particular religious belief as for those lacking
sufficient advancement so that they could, to their own advantage, be brought under the
Provincial Government Act and the Municipal Code.

The mere act of baptism does not, of course, in itself change the degree of civilization to
which the person baptized has attained at the time the act of baptism is performed. For
practical purposes, therefore, you will give the member of so-called "wild tribes" of your
province the benefit of the doubt even though they may recently have embraced
Christianity.

The determining factor in deciding whether they are to be allowed to remain under the
jurisdiction of regularly organized municipalities or what form of government shall be
afforded to them should be the degree of civilization to which they have attained and you
are requested to govern yourself accordingly.

I have discussed this matter with the Honorable, the Governor-General, who concurs in the
opinion above expressed and who will have the necessary instructions given to the
governors of the provinces organized under the Provincial Government Act. (Internal
Revenue Manual, p. 214.)

The present Secretary of the Interior, in a memorandum furnished a member of this court,
has the following to say on the subject:

As far as names are concerned the classification is indeed unfortunate, but while no other
better classification has as yet been made the present classification should be allowed to
stand . . . I believe the term carries the same meaning as the expressed in the letter of the
Secretary of the Interior (of June 30, 1906, herein quoted). It is indicative of the degree of
civilization rather than of religious denomination, for the hold that it is indicative of
religious denomination will make the law invalid as against that Constitutional guaranty of
religious freedom.

Another official who was concerned with the status of the non-Christians, was the
Collector of Internal Revenue. The question arose for ruling relatives to the cedula taxation
of the Manobos and the Aetas. Thereupon, the view of the Secretary of the Interior was
requested on the point, who, by return indorsement, agreed with the interpretation of the
Collector of Internal Revenue. This Construction of the Collector of Internal Revenue can
be found in circular letter No. 188 of the Bureau of Internal Revenue, dated June 11, 1907,
reading as follows (Internal Revenue Manual, p. 214):

The internal revenue law exempts "members of non-Christian tribes" from the payment of
cedula taxes. The Collector of Internal Revenue has interpreted this provision of law to
mean not that persons who profess some form of Christian worship are alone subject to
the cedula tax, and that all other person are exempt; he has interpreted it to mean that all
persons preserving tribal relations with the so-called non-Christian tribes are exempt from
the cedula tax, and that all others, including Jews, Mohammedans, Confucians, Buddists,
etc., are subject to said tax so long as they live in cities or towns, or in the country in a
civilized condition. In other words, it is not so much a matter of a man's form of religious
worship or profession that decides whether or not he is subject to the cedula tax; it is
more dependent on whether he is living in a civilized manner or is associated with the
mountain tribes, either as a member thereof or as a recruit. So far, this question has not
come up as to whether a Christian, maintaining his religious belief, but throwing his lot and
living with a non-Christian tribe, would or would not be subject to the cedula tax. On one
occasion a prominent Hebrew of Manila claimed to this office that he was exempt from
the cedula tax, inasmuch as he was not a Christian. This Office, however, continued to
collect cedula taxes from all the Jews, East Indians, Arabs, Chinamen, etc., residing in
Manila. Quite a large proportion of the cedula taxes paid in this city are paid by men
belonging to the nationalities mentioned. Chinamen, Arabs and other s are quite widely
scattered throughout the Islands, and a condition similar to that which exist in Manila also
exists in most of the large provincial towns. Cedula taxes are therefore being collected by
this Office in all parts of these Islands on the broad ground that civilized people are subject
to such taxes, and non-civilized people preserving their tribal relations are not subject
thereto.

(Sgd.) JNO. S. HORD,

Collector of Internal Revenue.

On September 17, 1910, the Collector of Internal Revenue addressed circular letter No.
327, approved by the Secretary of Finance and Justice, to all provincial treasurers. This
letter in part reads:

In view of the many questions that have been raised by provincial treasurers regarding
cedula taxes due from members of non-Christian tribes when they come in from the hills
for the purposes of settling down and becoming members of the body politic of the
Philippine Islands, the following clarification of the laws governing such questions and
digest of rulings thereunder is hereby published for the information of all concerned:

Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact
that they do not profess Christianity, but because of their uncivilized mode of life and low
state of development. All inhabitants of the Philippine Islands classed as members of non-
Christian tribes may be divided into three classes in so far as the cedula tax law is
concerned . . .

Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of
life, severs whatever tribal relations he may have had and attaches himself civilized
community, belonging a member of the body politic, he thereby makes himself subject to
precisely the same law that governs the other members of that community and from and
after the date when he so attaches himself to the community the same cedula and other
taxes are due from him as from other members thereof. If he comes in after the expiration
of the delinquency period the same rule should apply to him as to persons arriving from
foreign countries or reaching the age of eighteen subsequent to the expiration of such
period, and a regular class A, D, F, or H cedula, as the case may be, should be furnished
him without penalty and without requiring him to pay the tax for former years.

In conclusion, it should be borne in mind that the prime factors in determining whether or
not a man is subject to the regular cedula tax is not the circumstance that he does or does
not profess Christianity, nor even his maintenance of or failure to maintain tribal relations
with some of the well known wild tribes, but his mode of life, degree of advancement in
civilization and connection or lack of connection with some civilized community. For this
reason so called "Remontados" and "Montescos" will be classed by this office as members
of non-Christian tribes in so far as the application of the Internal Revenue Law is
concerned, since, even though they belong to no well recognized tribe, their mode of life,
degree of advancement and so forth are practically the same as those of the Igorrots and
members of other recognized non-Christina tribes.

Very respectfully,

(Sgd.) ELLIS CROMWELL,

Collector of Internal Revenue,

Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.

The two circular above quoted have since been repealed by Bureau of Internal Revenue
Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector of Internal
Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa, Secretary of
Finance and Justice. Section 30 of the regulations is practically a transcript of Circular
Letter No. 327.

The subject has come before the Attorney-General for consideration. The Chief of
Constabulary request the opinion of the Attorney-General as to the status of a non-
Christian who has been baptized by a minister of the Gospel. The precise questions were
these: "Does he remain non-Christian or is he entitled to the privileges of a Christian? By
purchasing intoxicating liquors, does he commit an infraction of the law and does the
person selling same lay himself liable under the provision of Act No. 1639?" The opinion of
Attorney-General Avanceña, after quoting the same authorities hereinbefore set out,
concludes:
In conformity with the above quoted constructions, it is probable that is probable that the
person in question remains a non-Christian, so that, in purchasing intoxicating liquors both
he and the person selling the same make themselves liable to prosecution under the
provisions of Act No. 1639. At least, I advise you that these should be the constructions
place upon the law until a court shall hold otherwise.

Solicitor-General Paredes in his brief in this case says:

With respect to the meaning which the phrase non-Christian inhabitants has in the
provisions of the Administrative code which we are studying, we submit that said phrase
does not have its natural meaning which would include all non-Christian inhabitants of the
Islands, whether Filipino or strangers, civilized or uncivilized, but simply refers to those
uncivilized members of the non-Christian tribes of the Philippines who, living without
home or fixed residence, roam in the mountains, beyond the reach of law and order . . .

The Philippine Commission in denominating in its laws that portion of the inhabitants of
the Philippines which live in tribes as non-Christian tribes, as distinguished from the
common Filipinos which carry on a social and civilized life, did not intended to establish a
distinction based on the religious beliefs of the individual, but, without dwelling on the
difficulties which later would be occasioned by the phrase, adopted the expression which
the Spanish legislation employed to designate the uncivilized portion of the inhabitants of
the Philippines.

The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of
Act No. 2657 (articles 2145 and 2759) should be understood as equivalent to members of
uncivilized tribes of the Philippines, not only because this is the evident intention of the
law, but because to give it its lateral meaning would make the law null and
unconstitutional as making distinctions base the religion of the individual.

The Official Census of 1903, in the portion written by no less an authority than De. David P.
Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the population in the
Christian or Civilized Tribes, and non-Christian or Wild Tribes. (Census of the Philippine
Islands [1903], vol. 1, pp. 411 et seq). The present Director of the Census, Hon. Ignacio
Villamor, writes that the classification likely to be used in the Census now being taken is:
"Filipinos and Primitive Filipinos." In a Pronouncing Gazetteer and Geographical Dictionary
of the Philippine Islands, prepared in the Bureau of Insular Affairs, War Department, a sub-
division under the title non-Christian tribes is, "Physical and Political Characteristics of the
non-Christian Tribes," which sufficiently shows that the terms refers to culture and not to
religion.

In resume, therefore, the Legislature and the Judiciary, inferentially, and different
executive officials, specifically, join in the proposition that the term "non-Christian" refers,
not to religious belief, but, in a way , to geographical area, and, more directly, to natives of
the Philippine Islands of a law grade of civilization, usually living in tribal relationship apart
from settled communities.

E. THE MANGUIANES.

The so-called non-Christians are in various state approaching civilization. The Philippine
Census of 1903 divided them into four classes. Of the third class, are the Manguianes (or
Mangyans) of Mindoro.

Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los
nombres de Rozas de Filipinas, says:

In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan," "negro."
It may be that the use of this word is applicable to a great number of Filipinos, but
nevertheless it has been applied only to certain inhabitants of Mindoro. Even in primitive
times without doubt this name was given to those of that island who bear it to-day, but its
employed in three Filipino languages shows that the radical ngian had in all these
languages a sense to-day forgotten. In Pampango this ending still exists and signifies
"ancient," from which we can deduce that the name was applied to men considered to be
the ancient inhabitants, and that these men were pushed back into the interior by the
modern invaders, in whose language they were called the "ancients."

The Manguianes are very low in culture. They have considerable Negrito blood and have
not advanced beyond the Negritos in civilization. They are a peaceful, timid, primitive,
semi-nomadic people. They number approximately 15,000. The manguianes have shown
no desire for community life, and, as indicated in the preamble to Act No. 547, have not
progressed sufficiently in civilization to make it practicable to bring them under any form
of municipal government. (See Census of the Philippine (Islands [1903], vol. I, pp. 22, 23,
460.)

III. COMPARATIVE — THE AMERICAN INDIANS.

Reference was made in the Presidents' instructions to the Commission to the policy
adopted by the United States for the Indian Tribes. The methods followed by the
Government of the Philippines Islands in its dealings with the so-called non-Christian
people is said, on argument, to be practically identical with that followed by the United
States Government in its dealings with the Indian tribes. Valuable lessons, it is insisted, can
be derived by an investigation of the American-Indian policy.

From the beginning of the United States, and even before, the Indians have been treated
as "in a state of pupilage." The recognized relation between the Government of the United
States and the Indians may be described as that of guardian and ward. It is for the
Congress to determine when and how the guardianship shall be terminated. The Indians
are always subject to the plenary authority of the United States.

Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned,
tells how the Congress passed an Act in 1819 "for promoting those humane designs of
civilizing the neighboring Indians." After quoting the Act, the opinion goes on — "This act
avowedly contemplates the preservation of the Indian nations as an object sought by the
United States, and proposes to effect this object by civilizing and converting them from
hunters into agriculturists."

A leading case which discusses the status of the Indians is that of the United
States vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause of the
United States Constitution which gives Congress "power to regulate commerce with
foreign nations, and among the several States, and with the Indian tribes." The court then
proceeds to indicate a brief history of the position of the Indians in the United States (a
more extended account of which can be found in Marshall's opinion in
Worcester vs. Georgia, supra), as follows:

The relation of the Indian tribes living within the borders of the United States, both before
and since the Revolution, to the people of the United States, has always been an
anomalous one and of a complex character.

Following the policy of the European Governments in the discovery of American towards
the Indians who were found here, the colonies before the Revolution and the States and
the United States since, have recognized in the Indians a possessory right to the soil over
which they roamed and hunted and established occasional villages. But they asserted an
ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer
it to other nations or peoples without the consent of this paramount authority. When a
tribe wished to dispose of its lands, or any part of it, or the State or the United States
wished to purchase it, a treaty with the tribe was the only mode in which this could be
done. The United States recognized no right in private persons, or in other nations, to
make such a purchase by treaty or otherwise. With the Indians themselves these relation
are equally difficult to define. They were, and always have been, regarded as having a
semi-independent position when they preserved their tribal relations; not as States, not as
nation not a possessed of the fall attributes of sovereignty, but as a separate people, with
the power of regulating their internal and social relations, and thus far not brought under
the laws of the Union or of the State within whose limits they resided.

The opinion then continues:

It seems to us that this (effect of the law) is within the competency of Congress. These
Indian tribes are the wards of the nation. The are communities dependent on the United
States. dependent largely for their daily food. Dependent for their political rights. They
owe no allegiance to the States, and receive from the no protection. Because of the local ill
feeling, the people of the States where they are found are often their deadliest enemies.
From their very weakness and helplessness, so largely due to the course of dealing of the
Federal Government with them and the treaties in which it has been promised, there arise
the duty of protection, and with it the power. This has always been recognized by the
Executive and by Congress, and by this court, whenever the question has arisen . . . The
power of the General Government over these remnants of race once powerful, now weak
and diminished in numbers, is necessary to their protection, as well as to the safety of
those among whom they dwell. it must exist in that government, because it never has
existed anywhere else, because the theater of its exercise is within the geographical limits
of the United States, because it has never been denied, and because it alone can enforce
its laws on all the tribes.

In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be
considered was whether the status of the Pueblo Indians and their lands was such that
Congress could prohibit the introduction of intoxicating liquor into those lands
notwithstanding the admission of New Mexico to statehood. The court looked to the
reports of the different superintendent charged with guarding their interests and founds
that these Indians are dependent upon the fostering care and protection of the
government "like reservation Indians in general." Continuing, the court said "that during
the Spanish dominion, the Indians of the pueblos were treated as wards requiring special
protection, where subjected to restraints and official supervisions in the alienation of their
property." And finally, we not the following: "Not only does the Constitution expressly
authorize Congress to regulate commerce with the Indians tribes, but long-continued
legislative and executive usage and an unbroken current of judicial decisions have
attributed to the United States as a superior and civilized nation the power and the duty of
exercising a fostering care and protection over all dependent Indian communities within its
borders, whether within its original territory or territory subsequently acquired, and
whether within or without the limits of a state."

With reference to laws affecting the Indians, it has been held that it is not within the
power of the courts to overrule the judgment of Congress. For very good reason, the
subject has always been deemed political in nature, not subject to the jurisdiction of the
judicial department of the government. (Matter of Heff [1905], 197 U.S., 488;
U.S.vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra;
Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco
[1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomasvs. Gay [1898], 169
U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907], 204
U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911],
221 U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35
L.R.A. [N. S.], 795.) Whenever, therefore, the United States sets apart any public land as an
Indian reservation, it has full authority to pass such laws and authorize such measures as
may be necessary to give to the Indians thereon full protection in their persons and
property. (U.S. vs. Thomas [1894], 151 U.S., 577.)

All this borne out by long-continued legislative and executive usage, and an unbroken line
of judicial decisions.
The only case which is even remotely in point and which, if followed literally, might result
in the issuance of habeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No.
14891). This was a hearing upon return to a writ of habeas corpus issued against Brigadier
General George Crook at the relation of Standing Bear and other Indians, formerly
belonging to the Ponca Tribe of Indians. The petition alleged in substance that the relators
are Indians who have formerly belonged to the Ponca tribe of Indians, now located in the
Indian Territory; that they had some time previously withdrawn from the tribe, and
completely severed their tribal relations therewith, and had adopted the general habits of
the whites, and were then endeavoring to maintain themselves by their own exertions,
and without aid or assistance from the general government; that whilst they were thus
engaged, and without being guilty of violating any of the laws of the United States, they
were arrested and restrained of their liberty by order of the respondent, George Crook.
The substance of the return to the writ was that the relators are individual members of,
and connected with, the Ponca tribe of Indians; that they had fled or escaped form a
reservation situated some place within the limits of the Indian Territory — had departed
therefrom without permission from the Government; and, at the request of the Secretary
of the Interior, the General of the Army had issued an order which required the
respondent to arrest and return the relators to their tribe in the Indian Territory, and that,
pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian
Territory.

The first question was whether an Indian can test the validity of an illegal imprisonment
by habeas corpus. The second question, of much greater importance, related to the right
of the Government to arrest and hold the relators for a time, for the purpose of being
returned to the Indian Territory from which it was alleged the Indian escaped. In discussing
this question, the court reviewed the policy the Government had adopted in its dealing
with the friendly tribe of Poncase. Then, continuing, the court said: "Laws passed for the
government of the Indian country, and for the purpose of regulating trade and intercourse
with the Indian tribes, confer upon certain officers of the Government almost unlimited
power over the persons who go upon the reservations without lawful authority . . .
Whether such an extensive discretionary power is wisely vested in the commissioner of
Indian affairs or not , need not be questioned. It is enough to know that the power
rightfully exists, and, where existing, the exercise of the power must be upheld." The
decision concluded as follows:

The reasoning advanced in support of my views, leads me to conclude:

1. that an Indian is a 'person' within the meaning of the laws of the United States, and has,
therefore, the right to sue out a writ of habeas corpus in a federal court, or before a
federal judge, in all cases where he may be confined or in custody under color of authority
of the United States or where he is restrained of liberty in violation of the constitution or
laws of the United States.
2. That General George Crook, the respondent, being commander of the military
department of the Platte, has the custody of the relators, under color of authority of the
United States, and in violation of the laws therefore.

3. That n rightful authority exists for removing by force any of the relators to the Indian
Territory, as the respondent has been directed to do.

4. that the Indians possess the inherent right of expatriation, as well as the more fortunate
white race, and have the inalienable right to "life, liberty, and the pursuit of happiness," so
long as they obey the laws and do not trespass on forbidden ground. And,

5. Being restrained of liberty under color of authority of the United States, and in violation
of the laws thereof, the relators must be discharged from custody, and it is so ordered.

As far as the first point is concerned, the decision just quoted could be used as authority to
determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine
Islands, is a "person" within the meaning of theHabeas Corpus Act, and as such, entitled to
sue out a writ in the Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We
so decide.

As to the second point the facts in the Standing Bear case an the Rubi case are not exactly
identical. But even admitting similarity of facts, yet it is known to all that Indian
reservations do exist in the United States, that Indians have been taken from different
parts of the country and placed on these reservation, without any previous consultation as
to their own wishes, and that, when once so located, they have been made to remain on
the reservation for their own good and for the general good of the country. If any lesson
can be drawn form the Indian policy of the United States, it is that the determination of
this policy is for the legislative and executive branches of the government and that when
once so decided upon, the courts should not interfere to upset a carefully planned
governmental system. Perhaps, just as may forceful reasons exists for the segregation as
existed for the segregation of the different Indian tribes in the United States.

IV. CONSTITUTIONAL QUESTIONS.

A. DELEGATION OF LEGISLATIVE POWER.

The first constitutional objection which confronts us is that the Legislature could not
delegate this power to provincial authorities. In so attempting, it is contended, the
Philippine Legislature has abdicated its authority and avoided its full responsibility.

That the maxim of Constitutional Law forbidding the delegation of legislative power should
be zealously protected, we agree. An understanding of the rule will, however, disclose that
it has not bee violated in his instance.

The rule has nowhere been better stated than in the early Ohio case decided by Judge
Ranney, and since followed in a multitude of case, namely: "The true distinction therefore
is between the delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring an authority or discretion as to its
execution, to be exercised under and in pursuance of the law. The first cannot be done; to
the later no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton
County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice Marshall in
Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the Legislature to an
executive department or official. The Legislature may make decisions of executive
departments of subordinate official thereof, to whom t has committed the execution of
certain acts, final on questions of fact. (U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing
tendency in the decision is to give prominence to the "necessity" of the case.

Is not all this exactly what the Legislature has attempted to accomplish by the enactment
of section 21454 of the Administrative Code? Has not the Legislature merely conferred
upon the provincial governor, with the approval of the provincial board and the
Department Head, discretionary authority as to the execution of the law? Is not this
"necessary"?

The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to
require the Secretary of the Interior to approve the selection and taking of one hundred
and sixty acres by the relator out of the lands ceded to the United States by the Wichita
and affiliated bands of Indians. Section 463 of the United States Revised Statutes provided:
"The Commissioner of Indian Affairs shall, under the direction of the Secretary of the
Interior, and agreeably to such regulations as the President may prescribe, have the
management of all Indian affairs, and of all matters arising out to the Indian relations."
Justice Holmes said: "We should hesitate a good deal, especially in view of the long
established practice of the Department, before saying that this language was not broad
enough to warrant a regulation obviously made for the welfare of the rather helpless
people concerned. The power of Congress is not doubted. The Indians have been treated
as wards of the nation. Some such supervision was necessary, and has been exercised. In
the absence of special provisions naturally it would be exercised by the Indian
Department." (See also as corroborative authority, it any is needed, Union Bridge
Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the previous decisions of the United States
Supreme Court: U.S. vs. Lane [1914], 232 U.S., 598.)

There is another aspect of the question, which once accepted, is decisive. An exception to
the general rule. sanctioned by immemorial practice, permits the central legislative body
to delegate legislative powers to local authorities. The Philippine Legislature has here
conferred authority upon the Province of Mindoro, to be exercised by the provincial
governor and the provincial board.

Who but the provincial governor and the provincial board, as the official representatives of
the province, are better qualified to judge "when such as course is deemed necessary in
the interest of law and order?" As officials charged with the administration of the province
and the protection of its inhabitants, who but they are better fitted to select sites which
have the conditions most favorable for improving the people who have the misfortune of
being in a backward state?

Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative
power by the Philippine Legislature to provincial official and a department head.

B. RELIGIOUS DISCRIMINATION

The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of
his unknown clients, says that — "The statute is perfectly clear and unambiguous. In limpid
English, and in words as plain and unequivocal as language can express, it provides for the
segregation of 'non-Christians' and none other." The inevitable result, them, is that the law
"constitutes an attempt by the Legislature to discriminate between individuals because of
their religious beliefs, and is, consequently, unconstitutional."

Counsel's premise once being conceded, his arguments is answerable — the Legislature
must be understood to mean what it has plainly expressed; judicial construction is then
excluded; religious equality is demanded by the Organic Law; the statute has violated this
constitutional guaranty, and Q. E. D. is invalid. But, as hereinbefore stated, we do not feel
free to discard the long continued meaning given to a common expression, especially as
classification of inhabitants according to religious belief leads the court to what it should
avoid, the nullification of legislative action. We hold that the term "non-Christian" refers to
natives of the Philippines Islands of a low grade of civilization, and that section 2145 of the
Administrative Code of 1917, does not discriminate between individuals an account of
religious differences.

C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.

The third constitutional argument is grounded on those portions of the President's

instructions of to the Commission, the Philippine Bill, and the Jones Law, providing "That
no law shall be enacted in said Islands which shall deprive any person of life, liberty, or
property without due process of law, or deny to any person therein the equal protection of
the laws." This constitutional limitation is derived from the Fourteenth Amendment to the
United States Constitution — and these provisions, it has been said "are universal in their
application, to all persons within the territorial jurisdiction, without regard to any
differences of race, of color, or of nationality." (Yick Wo vs.Hopkins [1886], 118 U.S., 356.)
The protection afforded the individual is then as much for the non-Christian as for the
Christian.

The conception of civil liberty has been variously expressed thus:

Every man may claim the fullest liberty to exercise his faculties, compatible with the
possession of like liberty by every other. (Spencer, Social Statistics, p. 94.)

Liberty is the creature of law, essentially different from that authorized licentiousness that
trespasses on right. That authorized licentiousness that trespasses on right. It is a legal and
a refined idea, the offspring of high civilization, which the savage never understood, and
never can understand. Liberty exists in proportion to wholesome restraint; the more
restraint on others to keep off from us, the more liberty we have . . . that man is free who
is protected from injury. (II Webster's Works, p. 393.)

Liberty consists in the ability to do what one caught to desire and in not being forced to do
what one ought not do desire. (Montesque, spirit of the Laws.)

Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to
one's own will. It is only freedom from restraint under conditions essential to the equal
enjoyment of the same right by others. (Field, J., in Crowley vs. Christensen [1890], 137
U.S., 86.)

Liberty does not import "an absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint. There are manifold restraints to which every
person is necessarily subject for the common good. On any other basis, organized society
could not exist with safety to its members. Society based on the rule that each one is a law
unto himself would soon be confronted with disorder and anarchy. Real liberty for all could
not exist under the operation of a principle which recognizes the right of each individual
person to use his own, whether in respect of his person or his property, regardless of the
injury that may be done to others . . . There is, of course, a sphere with which the
individual may asserts the supremacy of his own will, and rightfully dispute the authority of
any human government — especially of any free government existing under a written
Constitution — to interfere with the exercise of that will. But it is equally true that in very
well-ordered society charged with the duty of conserving the safety of its members, the
rights of the individual in respect of his liberty may at times, under the pressure of great
dangers, be subjected to such restraint to be enforced by reasonable regulations, as the
safety of the general public may demand." (Harlan, J., In Jacobson vs. Massachusetts
[1905] 197 U.S., 11.)

Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright
and honorable conscience of the individual. (Apolinario Mabini.)

Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a
civilized community, consistently with the peaceful enjoyment of like freedom in others.
The right to Liberty guaranteed by the Constitution includes the right to exist and the right
to be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but is deemed to
embrace the right of man to enjoy the faculties with which he has been endowed by this
Creator, subject only to such restraints as are necessary for the common welfare. As
enunciated in a long array of authorities including epoch-making decisions of the United
States Supreme Court, Liberty includes the right of the citizens to be free to use his
faculties in all lawful ways; to live an work where he will; to earn his livelihood by an lawful
calling; to pursue any avocations, an for that purpose. to enter into all contracts which may
be proper, necessary, and essential to his carrying out these purposes to a successful
conclusion. The chief elements of the guaranty are the right to contract, the right to
choose one's employment, the right to labor, and the right of locomotion.

In general, it may be said that Liberty means the opportunity to do those things which are
ordinarily done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall,
277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274;
Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See
6 R.C.L., 258, 261.)

One thought which runs through all these different conceptions of Liberty is plainly
apparent. It is this: "Liberty" as understood in democracies, is not license; it is "Liberty
regulated by law." Implied in the term is restraint by law for the good of the individual and
for the greater good of the peace and order of society and the general well-being. No man
can do exactly as he pleases. Every man must renounce unbridled license. The right of the
individual is necessarily subject to reasonable restraint by general law for the common
good. Whenever and wherever the natural rights of citizen would, if exercises without
restraint, deprive other citizens of rights which are also and equally natural, such assumed
rights must yield to the regulation of law. The Liberty of the citizens may be restrained in
the interest of the public health, or of the public order and safety, or otherwise within the
proper scope of the police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-
Tynes Manufacturing Co. vs.Cruz [1914], 189 Al., 66.)

None of the rights of the citizen can be taken away except by due process of law. Daniel
Webster, in the course of the argument in the Dartmouth College Case before the United
States Supreme Court, since a classic in forensic literature, said that the meaning of "due
process of law" is, that "every citizen shall hold his life, liberty, property, an immunities
under the protection of the general rules which govern society." To constitute "due
process of law," as has been often held, a judicial proceeding is not always necessary. In
some instances, even a hearing and notice are not requisite a rule which is especially true
where much must be left to the discretion of the administrative officers in applying a law
to particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due process a
stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority,
whether sanctioned by age and customs, or newly devised in the discretion of the
legislative power, in furtherance of the public good, which regards and preserves these
principles of liberty and justice, must be held to be due process of law."
(Hurtado vs. California [1883], 110, U.S., 516.) "Due process of law" means simply . . . "first,
that there shall be a law prescribed in harmony with the general powers of the legislative
department of the Government; second, that this law shall be reasonable in its operation;
third, that it shall be enforced according to the regular methods of procedure prescribed;
and fourth, that it shall be applicable alike to all the citizens of the state or to all of a class."
(U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme
Court. 1) "What is due process of law depends on circumstances. It varies with the subject-
matter and necessities of the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.)

The pledge that no person shall be denied the equal protection of the laws is not infringed
by a statute which is applicable to all of a class. The classification must have a reasonable
basis and cannot be purely arbitrary in nature.

We break off with the foregoing statement, leaving the logical deductions to be made later
on.

D. SLAVERY AND INVOLUNTARY SERVITUDE.

The fourth constitutional contention of petitioner relates to the Thirteen Amendment to

the United States Constitution particularly as found in those portions of Philippine Organic
Law providing "That slavery shall not exist in said Islands; nor shall involuntary servitude
exist except as a punishment for crime whereof the party shall have been duly convicted."
It is quite possible that the Thirteenth Amendment, since reaching to "any place subject
to" the "jurisdiction" of the United States, has force in the Philippine. However this may
be, the Philippine Legislature has, by adoption, with necessary modifications, of sections
268 to 271 inclusive of the United States Criminal Code, prescribed the punishment for
these crimes. Slavery and involuntary servitude, together wit their corollary, peonage, all
denote "a condition of enforced, compulsory service of one to another." (Hodges vs. U.S.
[1906], 203 U.S., 1.) The term of broadest scope is possibly involuntary servitude. It has
been applied to any servitude in fact involuntary, no matter under what form such
servitude may have been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.)

So much for an analysis of those constitutional provisions on which petitioners rely for
their freedom. Next must come a description of the police power under which the State
must act if section 2145 is to be held valid.

E. THE POLICE POWER.

Not attempting to phrase a definition of police power, all that it is necessary to note at this
moment is the farreaching scope of the power, that it has become almost possible to limit
its weep, and that among its purposes is the power to prescribe regulations to promote
the health, peace, morals, education, and good order of the people, and to legislate so as
to increase the industries of the State, develop its resources and add to is wealth and
prosperity. (See Barbier vs. Connolly [1884], 113 U.S., 27.) What we are not interested in is
the right of the government to restrain liberty by the exercise of the police power.

"The police power of the State," one court has said, . . . "is a power coextensive with self-
protection, and is not inaptly termed the 'law of overruling necessity.' It may be said to be
that inherent and plenary power in the State which enables it to prohibit all things hurtful
to the comfort, safety and welfare of society." (Lake View vs. Rose Hill Cemetery Co.
[1873], 70 Ill., 191.) Carried onward by the current of legislation, the judiciary rarely
attempt to dam the on rushing power of legislative discretion, provided the purposes of
the law do not go beyond the great principles that mean security for the public welfare or
do not arbitrarily interfere with the right of the individual.

The Government of the Philippine Islands has both on reason and authority the right to
exercise the sovereign police power in the promotion of the general welfare and the public
interest. "There can be not doubt that the exercise of the police power of the Philippine
Government belongs to the Legislature and that this power is limited only by the Acts of
Congress and those fundamental principles which lie at the foundation of all republican
forms of government." (Churchill and Tait vs. Rafferty [1915], 32 Phil., 580;
U.S. vs. Pompeya [1915], 31 Phil., 245.)

With the foregoing approximation of the applicable basic principles before us, before
finally deciding whether any constitutional provision has indeed been violated by section
2145 of the Administrative Code, we should endeavor to ascertain the intention of the
Legislature in enacting this section. If legally possible, such legislative intention should be
effectuated.

F. LEGISLATIVE INTENT.

The preamble of the resolution of the provincial board of Mindoro which set apart the
Tigbao reservation, it will be remembered, assigned as reasons fort the action, the
following: (1) The failure of former attempts for the advancement of the non-Christian
people of the province; and (2) the only successfully method for educating the Manguianes
was to oblige them to live in a permanent settlement. The Solicitor-General adds the
following; (3) The protection of the Manguianes; (4) the protection of the public forests in
which they roam; (5) the necessity of introducing civilized customs among the
Manguianes.

The present Secretary of the Interior says of the Tigbao reservation and of the motives for
its selection, the following:

To inform himself of the conditions of those Manguianes who were taken together to
Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place. There
he found that the site selected is a good one; that creditable progress has been made in
the clearing of forests, construction of buildings, etc., that there appears to be encouraging
reaction by the boys to the work of the school the requirements of which they appear to
meet with enthusiastic interest after the first weeks which are necessarily a somewhat
trying period for children wholly unaccustomed to orderly behaviour and habit of life. He
also gathered the impression that the results obtained during the period of less than one
year since the beginning of the institution definitely justify its continuance and
development.

Of course, there were many who were protesting against that segregation. Such was
naturally to be expected. But the Secretary of the Interior, upon his return to Manila, made
the following statement to the press:

"It is not deemed wise to abandon the present policy over those who prefer to live a
nomadic life and evade the influence of civilization. The Government will follow its policy
to organize them into political communities and to educate their children with the object
of making them useful citizens of this country. To permit them to live a wayfaring life will
ultimately result in a burden to the state and on account of their ignorance, they will
commit crimes and make depredation, or if not they will be subject to involuntary
servitude by those who may want to abuse them."

The Secretary of the Interior, who is the official charged with the supervision of all the non-
Christian people, has adopted as the polaris of his administration — "the advancement of
the non-Christian elements of our population to equality and unification with the highly
civilized Christian inhabitants." This is carried on by the adoption of the following
measures:

(a) Pursuance of the closer settlement policy whereby people of seminomadic race are
induced to leave their wild habitat and settle in organized communities.

(b) The extension of the public school system and the system of public health throughout
the regions inhabited by the non-Christian people.

(c) The extention of public works throughout the Mohammedan regions to facilitate their
development and the extention of government control.

(d) Construction of roads and trials between one place and another among non-Christians,
to promote social and commercial intercourse and maintain amicable relations among
them and with the Christian people.

(e) Pursuance of the development of natural economic resources, especially agriculture.

( f ) The encouragement of immigration into, and of the investment of private capital in,
the fertile regions of Mindanao and Sulu.

The Secretary adds:

To attain the end desired, work of a civilizing influence have been continued among the
non-Christian people. These people are being taught and guided to improve their living
conditions in order that they may fully appreciate the benefits of civilization. Those of
them who are still given to nomadic habits are being persuaded to abandon their wild
habitat and settle in organized settlements. They are being made to understand that it is
the purpose of the Government to organize them politically into fixed and per manent
communities, thus bringing them under the control of the Government, to aid them to live
and work, protect them from involuntary servitude and abuse, educate their children, and
show them the advantages of leading a civilized life with their civilized brothers. In short,
they are being impressed with the purposes and objectives of the Government of leading
them to economic, social, and political equality, and unification with the more highly
civilized inhabitants of the country. (See Report of the Department for 1917.)

The fundamental objective of governmental policy is to establish friendly relations with the
so-called non-Christians, and to promote their educational, agricultural, industrial, and
economic development and advancement in civilization. (Note Acts Nos. 2208, 2404,
2444.) Act No. 2674 in reestablishing the Bureau of non-Christian Tribes, defines the aim of
the Government towards the non-Christian people in the following unequivocal terms:

It shall be the duty of the Bureau of non-Christian Tribes to continue the work for
advancement and liberty in favor of the region inhabited by non-Christian Filipinos and
foster by all adequate means and in a systematical, rapid, and complete manner the moral,
material, economic, social, and political development of those regions, always having in
view the aim of rendering permanent the mutual intelligence between, and complete
fusion of, all the Christian and non-Christian elements populating the provinces of the
Archipelago. (Sec. 3.)

May the Manguianes not be considered, as are the Indians in the United States, proper
wards of the Filipino people? By the fostering care of a wise Government, may not these
unfortunates advance in the "habits and arts of civilization?" Would it be advisable for the
courts to intrude upon a plan, carefully formulated, and apparently working out for the
ultimate good of these people?

In so far as the Manguianes themselves are concerned, the purpose of the Government is
evident. Here, we have on the Island of Mindoro, the Manguianes, leading a nomadic life,
making depredations on their more fortunate neighbors, uneducated in the ways of
civilization, and doing nothing for the advancement of the Philippine Islands. What the
Government wished to do by bringing than into a reservation was to gather together the
children for educational purposes, and to improve the health and morals — was in fine, to
begin the process of civilization. this method was termed in Spanish times, "bringing under
the bells." The same idea adapted to the existing situation, has been followed with
reference to the Manguianes and other peoples of the same class, because it required, if
they are to be improved, that they be gathered together. On these few reservations there
live under restraint in some cases, and in other instances voluntarily, a few thousands of
the uncivilized people. Segregation really constitutes protection for the manguianes.

Theoretically, one may assert that all men are created free and equal. Practically, we know
that the axiom is not precisely accurate. The Manguianes, for instance, are not free, as
civilized men are free, and they are not the equals of their more fortunate brothers. True,
indeed, they are citizens, with many but not all the rights which citizenship implies. And
true, indeed, they are Filipinos. But just as surely, the Manguianes are citizens of a low
degree of intelligence, and Filipinos who are a drag upon the progress of the State.

In so far as the relation of the Manguianes to the State is concerned, the purposes of the
Legislature in enacting the law, and of the executive branch in enforcing it, are again plain.
Settlers in Mindoro must have their crops and persons protected from predatory men, or
they will leave the country. It is no argument to say that such crimes are punished by the
Penal Code, because these penalties are imposed after commission of the offense and not
before. If immigrants are to be encouraged to develop the resources of the great Islands of
Mindoro, and its, as yet, unproductive regions, the Government must be in a position to
guarantee peace and order.

Waste lands do not produce wealth. Waste people do not advance the interest of the
State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to protect
itself from destruction must prod on the laggard and the sluggard. The great law of
overwhelming necessity is all convincing.

To quote again from the instructive memorandum of the Secretary of the Interior:

Living a nomadic and a wayfaring life and evading the influence of civilization, they (the
manguianes) are engaged in the works of destruction — burning and destroying the forests
and making illegal caiñgins thereon. Not bringing any benefit to the State but instead
injuring and damaging its interests, what will ultimately become of these people with the
sort of liberty they wish to preserve and for which they are now fighting in court? They will
ultimately become a heavy burden to the State and on account of their ignorance they will
commit crimes and make depredations, or if not they will be subjected to involuntary
servitude by those who may want to abuse them.

There is no doubt in my mind that this people a right conception of liberty and does not
practice liberty in a rightful way. They understand liberty as the right to do anything they
will — going from one place to another in the mountains, burning and destroying forests
and making illegal caiñgins thereon.

Not knowing what true liberty is and not practising the same rightfully, how can they
allege that they are being deprived thereof without due process of law?

xxx xxx xxx

But does the Constitutional guaranty that 'no person shall be deprived of his liberty
without due process of law' apply to a class of persons who do not have a correct idea of
what liberty is and do not practise liberty in a rightful way?
To say that it does will mean to sanction and defend an erroneous idea of such class of
persons as to what liberty is. It will mean, in the case at bar, that the Government should
not adopt any measures looking to the welfare and advancement of the class of persons in
question. It will mean that this people should be let along in the mountains and in a
permanent state of savagery without even the remotest hope of coming to understand
liberty in its true and noble sense.

In dealing with the backward population, like the Manguianes, the Government has been
placed in the alternative of either letting them alone or guiding them in the path of
civilization. The latter measure was adopted as the one more in accord with humanity and
with national conscience.

xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more
towards the education and civilization of such people and fitting them to be citizens. The
progress of those people under the tutelage of the Government is indeed encouraging and
the signs of the times point to a day which is not far distant when they will become useful
citizens. In the light of what has already been accomplished which has been winning the
gratitude of most of the backward people, shall we give up the noble work simply because
a certain element, believing that their personal interests would be injured by such a
measure has come forward and challenged the authority of the Government to lead this
people in the pat of civilization? Shall we, after expending sweat, treasure, and even blood
only to redeem this people from the claws of ignorance and superstition, now willingly
retire because there has been erroneously invoked in their favor that Constitutional
guaranty that no person shall be deprived of his liberty without due process of law? To
allow them to successfully invoke that Constitutional guaranty at this time will leave the
Government without recourse to pursue the works of civilizing them and making them
useful citizens. They will thus left in a permanent state of savagery and become a
vulnerable point to attack by those who doubt, nay challenge, the ability of the nation to
deal with our backward brothers.

The manguianes in question have been directed to live together at Tigbao. There they are
being taught and guided to improve their living conditions. They are being made to
understand that they object of the government is to organize them politically into fixed
and permanent communities. They are being aided to live and work. Their children are
being educated in a school especially established for them. In short, everything is being
done from them in order that their advancement in civilization and material prosperity
may be assured. Certainly their living together in Tigbao does not make them slaves or put
them in a condition compelled to do services for another. They do not work for anybody
but for themselves. There is, therefore, no involuntary servitude.

But they are compelled to live there and prohibited from emigrating to some other places
under penalty of imprisonment. Attention in this connection is invited to the fact that this
people, living a nomadic and wayfaring life, do not have permanent individual property.
They move from one place to another as the conditions of living warrants, and the entire
space where they are roving about is the property of the nation, the greater part being
lands of public domain. Wandering from one place to another on the public lands, why can
not the government adopt a measure to concentrate them in a certain fixed place on the
public lands, instead of permitting them to roam all over the entire territory? This measure
is necessary both in the interest of the public as owner of the lands about which they are
roving and for the proper accomplishment of the purposes and objectives of the
government. For as people accustomed to nomadic habit, they will always long to return
to the mountains and follow a wayfaring life, and unless a penalty is provinced for, you can
not make them live together and the noble intention of the Government of organizing
them politically will come to naught.

G. APPLICATION AND CONCLUSION.

Our exhaustive study should have left us in a position to answer specific objections and to
reach a general conclusion.

In the first place, it is argued that the citizen has the right, generally speaking, to go where
he pleases. Could be not, however, be kept away from certain localities ? To furnish an
example from the Indian legislation. The early Act of Congress of 1802 (2 U.S. Stat. at L., p.
141) Indian reservation. Those citizens certainly did not possess absolute freedom of
locomotion. Again the same law provided for the apprehension of marauding Indians.
Without any doubt, this law and other similar were accepted and followed time and again
without question.

It is said that, if we hold this section to be constitutional, we leave this weak and
defenseless people confined as in a prison at the mercy of unscrupulous official. What, it is
asked, would be the remedy of any oppressed Manguian? The answer would naturally be
that the official into whose hands are given the enforcement of the law would have little
or not motive to oppress these people; on the contrary, the presumption would all be that
they would endeavor to carry out the purposes of the law intelligently and patriotically. If,
indeed, they did ill-treat any person thus confined, there always exists the power of
removal in the hands of superior officers, and the courts are always open for a redress of
grievances. When, however, only the validity of the law is generally challenged and no
particular case of oppression is called to the attention of the courts, it would seems that
the Judiciary should not unnecessarily hamper the Government in the accomplishment of
its laudable purpose.

The question is above all one of sociology. How far, consistently with freedom, may the
right and liberties of the individual members of society be subordinated to the will of the
Government? It is a question which has assailed the very existence of government from
the beginning of time. Now purely an ethical or philosophical subject, nor now to be
decided by force, it has been transferred to the peaceful forum of the Judiciary. In
resolving such an issue, the Judiciary must realize that the very existence of government
renders imperatives a power to restrain the individual to some extent, dependent, of
course, on the necessities of the class attempted to be benefited. As to the particular
degree to which the Legislature and the Executive can go in interfering with the rights of
the citizen, this is, and for a along time to come will be, impossible for the courts to
determine.

The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of
economics and political theory, are of the past. The modern period has shown as
widespread belief in the amplest possible demonstration of governmental activity. The
courts unfortunately have sometimes seemed to trial after the other two branches of the
government in this progressive march.

Considered, therefore, purely as an exercise of the police power, the courts cannot fairly
say that the Legislature has exceeded its rightful authority. it is, indeed, an unusual
exercise of that power. But a great malady requires an equally drastic remedy.

Further, one cannot hold that the liberty of the citizen is unduly interfered without when
the degree of civilization of the Manguianes is considered. They are restrained for their
own good and the general good of the Philippines. Nor can one say that due process of law
has not been followed. To go back to our definition of due process of law and equal
protection of the law, there exists a law ; the law seems to be reasonable; it is enforced
according to the regular methods of procedure prescribed; and it applies alike to all of a
class.

As a point which has been left for the end of this decision and which, in case of doubt,
would lead to the determination that section 2145 is valid. it the attitude which the courts
should assume towards the settled policy of the Government. In a late decision with which
we are in full accord, Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510)
the Chief Justice of the Supreme Court of Tennessee writes:

We can seen objection to the application of public policy as a ratio decidendi. Every really
new question that comes before the courts is, in the last analysis, determined on that
theory, when not determined by differentiation of the principle of a prior case or line of
cases, or by the aid of analogies furnished by such prior case. In balancing conflicting
solutions, that one is perceived to tip the scales which the court believes will best promote
the public welfare in its probable operation as a general rule or principle. But public policy
is not a thing inflexible. No court is wise enough to forecast its influence in all possible
contingencies. Distinctions must be made from time to time as sound reason and a true
sense of justice may dictate."

Our attempt at giving a brief history of the Philippines with reference to the so-called non-
Christians has been in vain, if we fail to realize that a consistent governmental policy has
been effective in the Philippines from early days to the present. The idea to unify the
people of the Philippines so that they may approach the highest conception of nationality.
If all are to be equal before the law, all must be approximately equal in intelligence. If the
Philippines is to be a rich and powerful country, Mindoro must be populated, and its fertile
regions must be developed. The public policy of the Government of the Philippine Islands
is shaped with a view to benefit the Filipino people as a whole. The Manguianes, in order
to fulfill this governmental policy, must be confined for a time, as we have said, for their
own good and the good of the country.

Most cautiously should the power of this court to overrule the judgment of the Philippine
Legislature, a coordinate branch, be exercised. The whole tendency of the best considered
case is toward non-interference on the part of the courts whenever political ideas are the
moving consideration. Justice Holmes, in one of the aphorisms for which he is justly
famous, said that "constitutional law, like other mortal contrivances, has to take some
chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in the final decision of the many grave
questions which this case presents, the courts must take "a chance," it should be with a
view to upholding the law, with a view to the effectuation of the general governmental
policy, and with a view to the court's performing its duty in no narrow and bigoted sense,
but with that broad conception which will make the courts as progressive and effective a
force as are the other departments of the Government.

We are of the opinion that action pursuant to section 2145 of the Administrative Code
does not deprive a person of his liberty without due process of law and does not deny to
him the equal protection of the laws, and that confinement in reservations in accordance
with said section does not constitute slavery and involuntary servitude. We are further of
the opinion that section 2145 of the Administrative Code is a legitimate exertion of the
police power, somewhat analogous to the Indian policy of the United States. Section 2145
of the Administrative Code of 1917 is constitutional.

Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can,
therefore, not issue. This is the true ruling of the court. Costs shall be taxes against
petitioners. So ordered.

Arellano, C.J., Torres and Avanceña, JJ., concur.

Separate Opinions

CARSON, J., concurring:

I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth in the
prevailing, opinion.
The words "non-Christian' have a clear, definite and well settled signification when used in
the Philippine statute-book as a descriptive adjective, applied to "tribes," "people," or
"inhabitants," dwelling in more or less remote districts and provinces throughout the
Islands.

Justice Malcolm, as I think, correctly finds that these words, as used in this connection in
our statute-book, denote the 'low grace of civilization" of the individuals included in the
class to which they are applied. To this I would add that the tests for the determination of
the fact that an individual or tribes is, or is not of the "non-Christian" are, and throughout
the period of American occupation always have been, "the mode of life, the degree of
advancement in civilization, and connection or lack of connection with some civilized
community." (Cf. letter of Collector of Internal Revenue dated September 17, 1910, and set
out in the principal opinion.)

The legislative and administrative history of the Philippine Islands clearly discloses that the
standard of civilization to which a specific tribe must be found to have advanced, to justify
its removal from the class embraces with the descriptive term "non-Christian," as that
term is used in the Philippine statute-book, is that degree of civilization which results in a
mode of life within the tribe, such that it is feasible and practicable to extend to, and
enforce upon its membership the general laws and regulations, administrative, legislative,
and judicial, which control the conduct of the admitted civilized inhabitants of the Islands;
a made of life, furthermore, which does not find expression in tribal customs or practices
which tend to brutalize or debauch the members of the tribe indulging in such customs or
practices, or to expose to loss or peril the lives or property of those who may be brought in
contact with members of the tribe.

So the standard of civilization to which any given number or group of inhabitants of

particular province in these Islands, or any individual member of such a group, must be
found to have advanced, in order to remove such group or individual from the class
embraced within the statutory description of "non-Christian," is that degree of civilization
which would naturally and normally result in the withdrawal by such persons of permanent
allegiance or adherence to a "non-Christian" tribe, had they at any time adhered to or
maintained allegiance to such a tribe; and which would qualify them whether they reside
within or beyond the habitat of a "non-Christian" tribe, not only to maintain a mode of life
independent of a apart from that maintain by such tribe, but a mode of life as would not
be inimical to the lives or property or general welfare of the civilized inhabitants of the
Islands with whom they are brought in contact.

The contention that, in this particular case, and without challenging the validity of the
statute, the writ should issue because of the failure to give these petitioners, as well as the
rest of the fifteen thousand Manguianes affected by the reconcentration order, an
opportunity to be heard before any attempt was made to enforce it, begs the question and
is, of course, tantamount to a contention that there is no authority in law for the issuance
of such an order.

If the fifteen thousand manguianes affected by the order complained of had attained that
degree of civilization which would have made it practicable to serve notice upon, and give
an opportunity for a real hearing, to all the members of the tribe affected by the order, it
may well be doubted whether the provincial board and the Secretary of the Interior would
have been justified in its enforcement By what proceeding known to the law, or to be
specially adopted in a particular case, could the offices of any province provide for a
genuine hearing upon a proposal to issue a reconcentration order upon a head-hunting
tribe in the north of the Island of Luzon; or upon one of the nomadic tribes
whose habitat is in the mountain fastnesses of Mindanao, and whose individual members
have no fixed or known place of residence, or upon the fifteen thousand Manguianes
roaming in the wilds of Mindoro.

Of course, friendly headmen or chief might and, as a rule, should be consulted, after the
practice in the United States when tribes or groups of American Indians have been placed
upon reservations; but since non-Christian head men and chiefs in the Philippines have no
lawful authority to bind their acts or their consent, the objection based on lack of a
hearing, would have the same force whether the issuance of a reconcentration order was
or was not preceded by a pow-wow of this kind.

The truth of the mater is that the power to provide for the issuance of such orders rests
upon analogous principles to those upon which the liberty and freedom or action of
children and persons of unsound minds is restrained, without consulting their wishes, but
for their own good and the general welfare. The power rests upon necessity, that "great
master of all things," and is properly exercised only where certain individuals or groups of
individual are found to be of such a low grade of civilization that their own wishes cannot
be permitted to determine their mode of life or place of residence.

The status of the non-Christian inhabitants of these Islands, and the special and necessarily
paternal attitude assume toward them by the Insular Government is well illustrated by the
following provisions found in the Administrative Code of 1917:

SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes). — It shall be the
duty of the Bureau of non-Christian tribes to continue the work for advancement and
liberty in favor of the regions inhabited by non-Christian Filipinos and to foster by all
adequate means and in a systematic, rapid, and completely manner the moral, material,
economic, social and political development of those regions, always having in view the aim
of rendering permanent the mutual intelligence between and complete fusion of all the
Christian and non-Christian elements populating the provinces of the Archipelago.

SEC. 2116. Township and settlement fund. — There shall be maintained in the provincial
treasuries of the respective specially organized provinces a special fund to be known as the
township and settlement fund, which shall be available, exclusively, for expenditures for
the benefit of the townships and settlements of the province, and non-Christian
inhabitants of the province, upon approval of the Secretary of the Interior.

As I understand it, the case at bar does not raise any real question as to the jurisdiction of
the courts of these Islands in habeas corpus proceedings, to review the action of the
administrative authorities in the enforcement of reconcentration orders issued, under
authority of section 2145 of the Administrative Code, against a petitioner challenging the
alleged fact that he is a "non-Christian" as that term is used in the statute. I, therefore,
express no opinion on that question at this time.

JOHNSON, J., dissenting:

I dissent. The petitioners were deprived of their liberty without a hearing. That fact is not
denied. I cannot give my consent to any act which deprives the humblest citizen of his just
liberty without a hearing, whether he be a Christian or non-Christian. All persons in the
Philippine Islands are entitled to a hearing, at least, before they are deprived of their
liberty.

MOIR, J., dissenting:

I dissent.

I realize that a dissenting opinion carries little weight, but may sense of justice will not
permit me to let this decision go on record without expressing may strong dissent from the
opinion of Justice Malcolm, concurred in by a majority of the court. I shall not attempt to
analyze the opinion or to go into the question in detail. I shall simply state, as briefly as
may be, the legal and human side of the case as it presents itself to my mind.

The facts are that one Rubi and various other Manguianes in the Province of Mindoro were
ordered by the Provincial governor of Mindoro to remove their residence from their
native habitat and to establish themselves on a reservation at Tigbao in the Province of
Mindoro and to remain there, or be punished by imprisonment if they escaped. This
reservation, as appears from the resolution of the provincial board, extends over an area
of 800 hectares of land, which is approximately 2,000 acres, on which about three hundred
manguianes are confined. One of the Manguianes, Dabalos, escaped from the reservation
and was taken in hand by the provincial sheriff and placed in prision at Calapan, solely
because he escaped from the reservation. The Manguianes used out a writ of habeas
corpus in this court, alleging that they are deprived of their liberty in violation of law.

The Solicitor-General of the Philippine Islands makes return to the writ copied in the
majority opinion which states that the provincial governor of Mindoro with the prior
approval of his act by the Department Secretary ordered the placing of the petitioners and
others on a reservation.

The manguianes, it is stated on page 694 of the majority opinion, "are very low in culture.
They have considerable Negrito blood and have not advanced beyond the Negritos in
civilization. They are peaceful, timid, primitive, seminomadic people. They number
approximately 15,000 (?). The manguianes have shown no desire for community life, and,
as indicated in the preamble to Act No. 547, have no progressed sufficiently in civilization
to make it practicable to bring them under any for of municipal government."

It may be well to add that the last P.I. Census (1903) shows that the Island of Mindoro (not
including smaller islands which together make the Province of Mindoro) has an area of
3,851 square miles and a populations of 28, 361 of which 7, 369 are wild or uncivilized
tribes (Manguianes). This appears to be the total Mangyan population of the province. The
total population was less than seven to the mile (Vol. 2, P.I. Census, pp. 30 and 407).

The Island is fertile, heavily wooded and well watered.

It has no savage population, but it is sparsely settled by Christian Filipinos along the coast
and by Manguianes.

The Manguianes roamed its mountains and valleys, fishing and hunting at will long before
Magallanes [Magellan] anchored his boats in the water of Cebu. They have made little or
no progress in the ways of civilization. "They are a peaceful, timid, primitive, seminomadic
people," whom the Government of the Philippines Islands would bring under the
beneficient influence of civilization and progress.

The law provides for it in section 2145 of the Administrative Code, and for those who like
Dadalos do not take kindly to the ways provided for civilizing them section 2759 provides
the punishment.

The attorney for the petitioners has raised various constitutional questions, but only the
fundamental one will be considered by me. It is that the sections of the Administrative
Code, 2145 and 2759, quoted in the majority opinion, are in violation of the first paragraph
of section 3 of the Act of Congress of August 29, 1916, which reads as follows:

That no law shall be enacted in said Islands which shall deprive any person of life, liberty or
property without due process of law, or deny to any person therein the equal protection of
the laws.

It is not necessary to argue that a Mangyan is one of the persons protected by that
provision.

The Attorney-General argues that the treatment provided for the Manguianes is similar to
that accorded the Indians in the United States, and reference is made all through the
court's decision to the decisions of the United States Supreme Court with reference to the
Indians. It is not considered necessary to go into these cases for the simple reason that all
the Indians nations in the United States were considered as separate nations and all acts
taken in regard to them were the result of separate treaties made by the United States
Government with the Indian nations, and, incompliance with these treaties, reservations
were set apart for them on which they lived and were protected form intrusion and
molestation by white men. Some these reservations were larger than the Islands of Luzon,
and they were not measured in hectares but in thousands of square miles.

The Manguianes are not a separate state. They have no treaty with the Government of the
Philippine Islands by which they have agreed to live within a certain district where they are
accorded exclusive rights. They are citizens of the Philippine Islands. Legally they are
Filipinos. They are entitled to all the rights and privileges of any other citizen of this
country. And when the provincial governor of the Province of Mindoro attempted to take
them from their native habitat and to hold them on the little reservation of about 800
hectares, he deprived them of their rights and their liberty without due process of law, and
they were denied the equal protection of the law.

The majority opinion says "they are restrained for their own good and the general good of
the Philippines."

They are to be made to accept the civilization of the more advanced Filipinos whether they
want it or not. They are backward and deficient in culture and must be moved from their
homes, however humble they may be and "bought under the bells" and made to stay on a
reservation.

Are these petitioners charged with any crime? There is no mention in the return of the
Solicitor-General of the Philippine Islands of any crime having been committed by these
"peacefully, timid, primitive, semi-nomadic people."

A memorandum of the Secretary of the Interior of the Philippine Islands is copied

in extenso in the majority opinion, and from it I gather the nature of their offense which is
that —

Living a nomadic and wayfaring life and evading the influence of civilization, they (the
manguianes) are engaged in the works of destruction — burning and destroying the forests
and making illegal caiñginsthereon. No bringing any benefit to the State but, instead,
injuring and damaging its interests, what will ultimately become of those people with the
sort of liberty they wish to preserve and for which they are not fighting in court? They will
ultimately become a heavy burden to the State and, on account of their ignorance, they
will commit crimes and make depredations, or if not they will be subjected to involuntary
servitude by those who may want to abuse them.

There is no doubt in my mind that this people has not a right conception of liberty and
does not practice liberty in a rightful way. They understand liberty as the right to do
anything they will — going from one place to another in the mountains, burning and
destroying forests and making illegal caiñgins thereon.

Not knowing what true liberty is and not practising the same rightfully, how can they are
being deprived thereof without due process of law?

xxx xxx xxx

But does the constitutional guaranty that "no person shall be deprived of his liberty
without due process of law" apply to a class of persons who do not have a correct idea of
what liberty is and do not practise liberty in a rightful way?

To say that it does will mean to sanction and defend an erroneous idea of such class of
persons as to what liberty is. It will mean, in the case at bar, that the Government should
not adopt any measures looking to the welfare and advancement of the class of persons in
question. It will mean that this people be let alone in the mountains and in a permanent
state of savagery without even the remotest hope of coming to understand liberty in its
true and noble sense.

In dealing with the backward population, like the Manguianes, the Government has been
placed in the alternative of either letting them alone or guiding them in the path of
civilization. The latter measure was adopted as the one more in accord with humanity and
with national conscience.

xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more
towards the education and civilization of such people and fitting them to be citizens.

There appear to be two intimations or charges in this memorandum; one is that the
Manguianes destroy the forest by making a caiñgin. What is a "caiñgin?" Simply this. These
people move their camp or place of abode frequently and when they do move to a new
place, it is necessary to clear the land in order to plant corn and camotes (sweet potatoes)
and they cut down the smaller trees and burn these around the larger ones, killing them,
so that they can plant their crops. The fires never spread in the tropical undergrowth of an
island like Mindoro, but the trees within the caiñgin are killed and crops are planted and
harvested. This land may be abandoned later on — due to superstition, to a lack of game in
the neighborhood, to poor crops from exhausted fertility, or to a natural desire to move
on.

Granting that the Manguianes do make caiñgins or clear lands in spots and then abandon
them for the more fertile lands, which every man knows to be just over the hills, we
cannot see that they are committing such a great abuse as to justify incarcerating them on
a small tract of land — for incarceration it is and nothing less.
The second intimation or charge is that "they will become a heavy burden to the state and
on account of their ignorance they will commit crimes and make depredations, or if not
they will be subjected to involuntary servitude by those who want to abuse them." They
have never been a burden to the state and never will be. They have not committed crimes
and, when they do, let the law punish them." The authorities are anticipating too much
from these "peaceful, timid, primitive, semi-nomadic people." Their history does not
demonstrate that we must expect them to commit crimes and jail them to prevent the
possibility. But the Secretary says "they will be subjected to involuntary servitude by those
want to abuse them." Are they more liable to be subjected to involuntary servitude when
left free to roam their native hills and gain a livelihood as they have been accustomed to
for hundreds of years, than they will be if closely confined on a narrow reservation from
which they may not escape without facing a term in jail? Is not more likely that they will be
glad to exchange their "freedom" on a small reservation for the great boon of binding
themselves and their children to the more fortunate Christian Filipinos who will feed them
and clothe them in return of their services.?

It think it not only probable but almost a certainty that they will be all be subjected to
involuntary personal servitude if their freedom is limited as it has been. How will they live?
There may be persons who are willing to lend them money with which to buy food on the
promise that they will work for them. And if they accept the loan and do not work for the
lender we have another law on the statute books, Act No. 2098, into whose noose they run
their necks, and they may be fined not more than two hundred pesos or imprisonment for
not exceeding six months or both, and when the sentence expires they must again go into
debt or starve, and if they do not work will again go to jail, and this maybe repeated till
they are too old to work and are cast adrift.

The manguianes have committed no offenses and are charged with none. It does not
appear they were ever consulted about their reconcentration. It does not appear that they
had any hearing or were allowed to make any defense. It seems they were gathered here
and there whenever found by the authorities of the law and forcibly placed upon the
reservation, because they are "non-Christian," and because the provincial governor
ordered it. Let it be clear there is no discrimination because of religion. The term "non-
Christian" means one who is not a Christian Filipino, but it also means any of the so-called
"wild" or backward tribes of the Philippines. These non-Christian tribes are Moros,
Igorrotes, Bukidnons, Ifugaos, Manguianes and various others, about one millions souls all
together. Some of them, like the Moros, Tinguianes and Ifugaos, have made great progress
in civilization. The have beautiful fields reclaimed by hard labor — they have herds of
cattle and horses and some few of them are well educated. Some of the non-Christians,
like the Aetas and the Negritos, are very low in the scale of civilization, but they are one
and all "non-Christians," as the term is used and understood in law and in fact.

All of them, according to the court's opinion under the present law, may be taken from
their homes and herded on a reservation at the instance of the provincial governor, with
the prior approval of the department head. To state such a monstrous proposition is to
show the wickedness and illegality of the section of the law under which these people are
restrained of their liberty. But it is argued that there is no probability of the department
head ever giving his approval to such a crime, but the fact that he can do it and has done it
in the present case in what makes the law unconstitutional. The arbitrary and
unrestricted power to do harm should be the measure by which a law's legality is tested
and not the probability of doing harm.

It has been said that this is a government of laws and not of men; that there is no arbitrary
body of individuals; that the constitutional principles upon which our government and its
institutions rest do not leave room for the play and action of purely personal and arbitrary
power, but that all in authority are guided and limited by these provisions which the
people have, the through the organic law, declared shall be the measure and scope of all
control exercised over them. In particular the fourteenth amendment, and especially the
equal protection clause, thereof, forbids that the individual shall be subjected to any
arbitrary exercise of the powers of government; it was intended to prohibit, and does
prohibit, any arbitrary deprivation of life or liberty, or arbitrary spoliation of property.

As we have seen, a statute which makes a purely arbitrary or unreasonable classification,

or which singles out any particular individuals or class as the subject of hostile and
discriminating legislation, is clearly unconstitutional as being opposed to the fourteenth
amendment and especially to the equal protection clause thereof. This is a plain case, and
requires no further discussion. (Vol. 4, Encyclopedia of U.S. Supreme Court Reports, p.
366.)

When we consider the nature and the theory of our institutions of government, the
principles upon which they are supposed to rest, and review the history of their
development, we are constrained to conclude that they do not mean to leave room for the
play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not
subject to law, for its is the author and source of law; but in our system, while sovereign
powers are delegated to the agencies of government, sovereignty itself remains with the
people, by whom and for whom all government exists and acts. And the law is the
definition and limitation of power. It is, indeed, quite true, that there must always be
lodged somewhere, and in some person or body, the authority of final decision; and, in
many cases of mere administration the responsibility is purely political, no appeal lying
except to the ultimate tribunal of the public judgment, exercised either in the pressure of
opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the
pursuit of happiness, considered as individual possessions, are secured by those maxims of
constitutional law which are the monuments showing the victorious progress of the race in
securing to men the blessings of civilization under the reign of just and equal laws, so that,
in the famous language of Massachusetts Bill of Rights, the Government of Commonwealth
"may be a government of law and not of men." For the very idea that one man may be
compelled to hold his life, or the means of living, or any material right essential to the
enjoyment of life, at the mere will of another, seems to be intolerable in any country
where freedom prevails, as being the essence of slavery itself. (Yick Wo vs. Hopkins, 118
U.S., 374.)

It is said that the present law is an old Act being substance Act No. 547 of the Philippine
Commission. But it has never been brought before this court for determination of its
constitutionality. No matter how beneficient the motives of the lawmakers if the
lawmakers if the law tends to deprive any man of life, liberty, or property without due
process law, it is void.

In may opinion the acts complained of which were taken in conformity with section 2145
of the Administrative Code not only deprive these Manguianes of their liberty, without due
process of law, but will in all probability deprive them of their life, without due process of
law. History teaches that to take a semi-nomadic tribe from their native fastnesses and to
transfer them to the narrow confines of a reservation is to invite disease an suffering and
death. From my long experience in the Islands, I should say that it would be a crime of title
less magnitude to take the Ifugaos from their mountain homes where they have reclaimed
a wilderness and made it a land of beauty and fruitfulness and to transfer them to the
more fertile, unoccupied, malaria infested valleys which they look down upon from their
fields — than it would be to order their decapitation en masse.

There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and are in
exactly the same category as the Manguianes. If the Manguianes may be so taken from
their native habitat and reconcentrated on a reservation — in effect an open air jail —
then so may the Ifugaos, so may the Tinguianes, who have made more progress than the
Ifugaos, and so may the Moros.

There are "non-Christian" in nearly every province in the Philippine Islands. All of the
thirty-nine governors upon the prior approval of the head of the department, have the
power under this law to take the non-Christian inhabitants of their different provinces
form their homes and put them on a reservation for "their own good and the general good
of the Philippines," and the court will grant them no relief. These unfortunate citizens of
the Philippine Islands would hold their liberty, and their lives, may be, subject to the
unregulated discretion of the provincial governor.

And who would be safe?

After the reservation is once established might not a provincial governor decide that some
political enemy was a non-Christian, and that he would be safer on the reservation. No
matter what his education and culture, he could have no trial, he could make no defense,
the judge of the court might be in a distant province and not within reach, and the
provincial governor's fiat is final.

The case of the United States vs. Crook (Federal Cases 14891), cited in the majority
opinion, should be quoted at length. District Judge Dundy said:

During the fifteen years in which I have been engaged in administering the laws of my
country, I have never been called upon to hear or decide a case that appealed so strongly
to my sympathy as the one now under consideration. On the one side, we have a few of
the remnants of a once numerous and powerful, but now weak, insignificant, unlettered,
and generally despised race; and the other, we have the representative of one of the most
powerful, most enlightened, and most christianized nations of modern times. On the one
side, we have the representatives of this wasted race coming into this national tribunal of
ours, asking for justice and liberty to enable them to adopt our boasted civilization, and to
pursue the arts of peace, which have made us great and happy as a nation; on the other
side, we have this magnificent, if not magnanimous, government, resisting this application
with the determination of sending these people back to the country which is to them less
desirable perpetual imprisonment in their own native land. But I think it is creditable to the
heart and mind of the brave and distinguished officer who is made respondent herein to
say that he has no sort of sympathy in the business in which he is forced by his position to
bear a part so conspicuous; and, so far as I am individually concerned, I think it not
improper to say that, if the strongest possible sympathy could give the relators title to
freedom, they would have been restored to liberty the moment the arguments in their
behalf were closed. no examination or further thought would then have been necessary or
expedient. But in a country where liberty is regulated by law, something more satisfactory
and enduring than mere sympathy must furnish and constitute the rule and basis of
judicial action. It follows that this case must be examined and decided on principles of law,
and that unless the relators are entitled to their discharge under the constitution or laws
of the United States, or some treaty, they must be remanded to the custody of the officer
who caused their arrest, to be returned to the Indian Territory which they left without the
consent of the government.

On the 8th of April, 1879, the relators Standing Bear and twenty-five others, during the
session of the court held at that time of Lincoln, presented their petition, duly verified,
praying for the allowance of a writ ofhabeas corpus and their final discharged from custody
thereunder.

The petition alleges, in substance, that the relators are Indians who have formerly
belonged to the Ponca tribe of Indians now located in the Indian Territory; that they had
some time previously withdrawn from the tribe, and completely severed their tribal
relations therewith, and had adopted the general habits of the whites, and were then
endeavoring to maintain themselves by their own exertions, and without aid or assistance
from the general government; that whilst they were thus engaged, and without being
guilty of violating any of the laws of the United States, they were arrested and restrained
of their liberty by order of the respondent, George Crook.

The writ was issued and served on the respondent on the 8th day of April, and, the
distance between the place where the writ was made returnable and the place where the
relators were confined being more than twenty miles, ten days were alloted in which to
make return.

On the 18th of April the writ was returned, and the authority for the arrest and detention
is therein shown. The substance of the return to the writ, and the additional statement
since filed, is that the relators are individual members of, and connected with, the Ponca
Tribe of Indians; that they had fled or escaped from a reservation situated in some place
within the limits of the indian Territory — had departed therefrom without permission
from the government; and, at the request of the secretary of the interior, the general of
the army had issued an order which required the respondent to arrest and return the
relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had
caused the relators to be arrested on the Omaha Indian reservation, and that they were in
his custody for the purpose of being returned to the Indian Territory.

It is claimed upon the one side, and denied upon the other, that the relators had
withdrawn and severed, for all time, their connection with the tribe to which they
belonged; and upon this point alone was there any testimony produced by either party
hereto. The other matter stated in the petition and the return to the writ are conceded to
be true; so that the questions to be determined are purely questions of law.

On the 8th of Mar, 1859, a treaty was made by the United States with the Ponca tribe of
Indians, by which a certain tract of country, north of the Niobrara river and west of the
Missouri, was set apart for the permanent home of the aid Indians, in which the
government agreed to protect them during their good behaviour. But just when or how, or
why, or under what circumstances, the Indians left their reservation in Dakota and went to
the Indian Territory does not appear.

xxx xxx xxx

A question of much greater importance remains for consideration, which, when

determined, will be decisive of this whole controversy. This relates to the right of the
government to arrest and hold the relators for a time, for the purpose of being returned to
a point in the Indian Territory from which it is alleged the Indians escaped. I am not vain
enough to think that I can do full justice to a question like the one under consideration.
But, as the mater furnishes so much valuable material for discussion, and so much food for
reflection, I shall try to present it as viewed from my own standpoint, without reference to
consequences or criticisms, which, though not specially invited, will be sure to follow.

xxx xxx xxx

On the 15th day of August, 1876, congress passed the general Indian appropriation bill,
and in it we find a provision authorizing the secretary of the interior to use $25,000 for the
removal of the Poncas to the Indian Territory, and providing them a home therein, with
consent of the tribe. (19 Sta., 192.)

xxx xxx xxx

The Poncas lived upon their reservation in southern Dakota, and cultivated a portion of the
same, until two or three years ago, when they removed therefrom, but whether by force
or otherwise does not appear. At all event, we find a portion of them, including the
relators, located at some point in the Indian Territory. There, the testimony seems to
show, is where the trouble commenced. Standing Bear, the principal witness, states that
out of five hundred and eighty-one Indians who went from the reservation in Dakota to
the Indian Territory, one hundred and fifty-eight died within a year or so, and a great
proportion of the others were sick and disabled, caused, in a great measure, no doubt,
from change of climate; and to save himself and the survivors of his wasted family, and the
feeble remnant of his little band of followers, he determined to leave the Indian Territory
and return to his old home, where, to use his own language, "he might live and die in
peace, and be buried with his fathers." He also stated that he informed the agent of their
final purpose to leave, never to return, and that he and his followers had finally, fully, and
forever severed his and their connection with the Ponca tribe of Indians, and had resolved
to disband as a tribe, or band of Indians, and to cut loose from the government, go to
work, become self-sustaining, and adopt the habits and customs of a higher civilization. To
accomplish what would seem to be a desirable and laudable purpose, all who were able to
do so went to work to earn a living. The Omaha Indians, who speak the same language,
and with whom many of the Poncas have long continued to intermarry, gave them
employment and ground to cultivate, so as to make them self-sustaining. And it was when
at the Omaha reservation, and when thus employed, that they were arrested by order of
the government, for the purpose of being taken back to the Indian Territory. They claim to
be unable to see the justice, or reason, or wisdom, or necessity, of removing them by force
from their own native plains and blood relations to a far-off country, in which they can see
little but new-made graves opening for their reception. The land from which they fled in
fear has no attractions for them. The love of home and native land was strong enough in
the minds of these people to induce them to brave every peril to return and live and die
where they had been reared. The bones of the dead son of Standing Bear were not to
repose in the land they hoped to be leaving forever, but were carefully preserved and
protected and formed a part of what was to them melancholy procession homeward. Such
instances of parental affections, and such love home and native land, may be heathen in
origin, but it seems to that they are not unlike Christian in principle.

And the court declared that the Indians were illegally held by authority of the United
States and in violation of their right to life, liberty, and the pursuit of happiness, and
ordered their release from custody.

This case is very similarly to the case of Standing Bear and others.
 I think this Court should declare that section 2145 and 2759 of the Administrative Code of
1917 are unconstitutional, null and void, and that the petitioners are illegally restrained of
their liberty, and that they have been denied the equal protection of the law, and order
the respondents immediately to liberate all of the petitioners.

Footnotes
1
218 U.S., 302; 54 L. ed., 1049.

The Lawphil Project - Arellano Law Foundation

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NEBBIA v. NEW YORK

Print this Page

Case Basics

Docket No.

531

Petitioner

Nebbia

Respondent
New York

Decided By

Hughes Court (1932-1937)

Opinion

291 U.S. 502 (1934)

Argued

Monday, December 4, 1933

Decided

Monday, March 5, 1934

Term:

 1901-1939

o 1933

Location: Grocery Store

Facts of the Case

To combat the effects of the Great Depression, New York adopted a Milk Control Law in 1933 which
established a board empowered to set a minimum retail price for milk. Nebbia was a store owner who
violated the law.

Question

Did the regulation violate the Due Process Clause of the Fourteenth Amendment?

Conclusion

No. In a case which included a lengthy discussion of the Due Process Clause, the Court held that since
the price controls were not "arbitrary, discriminatory, or demonstrably irrelevant" to the policy adopted
by the legislature to promote the general welfare, it was consistent with the Constitution. There was
nothing "peculiarly sacrosanct" about prices which insulates them from government regulation, argued
Justice Roberts.

Nebbia v. New York

Posted on August 11, 2013 | Constitutional Law | Tags: Constitutional Law Case Brief

Facts

Nebbia was a store owner, convicted of selling milk below the minimum retail price of 9 cents. The New
York legislature put this act into effect because they viewed that the critically depressed state of milk
farmers in New York was due to price cutting among milk distributors and suggested that this
destruction be mitigated by regulating the price.

Issue

Is this constitutional? In Lochner, this would not be presage.

Holding

YES.

Rule

Guaranty of due process demands only that the law shall not be unreasonable, arbitrary or capricious,
and that the means selected have a real and substantial relation to the object sought to be attained.

Court Reasoning

To prevent the ruthless competition from destroying the wholesale price structure on which farmers
depends for his livelihood, and the community for an assured supply of milk.

Court is really stretching the Lochner doctrine, in which the ends, need to be closely related to the
means, in other words, in order to have police power, it needs to be for the public good – here, it
doesn’t appear that the public good is being effected by this at all.

Lochner – does not permit government regulation of wages in the private relationship
employer/employee relationships, did allow regulation of certain business affected with public interests,
such as railroads…Nebbia just took an expansive view as to what public interest means.

Dissent

This is not regulation, but…amounts to the deprivation of the fundamental right which one has to
conduct his own affairs honestly and along customary lines.
P. 1

Tumey vs Ohio Digest

Tumey vs Ohio Digest

Ratings: 0|Views: 1,219|Likes: 5

Published by ifygirl

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Tumey vs. Ohio [273 US 510, 7 March 1927]

Taft (CJ):

Facts:

Tumey was arrested at White Oak, and was brought before Mayor Pugh, of the village of NorthCollege
Hill, charged with unlawfully possessing intoxicating liquor. He moved for his dismissal because of the
disqualification of the mayor to try him under the 14th Amendment. The mayor denied
the motion,proceeded to the trial, convicted Tumey of unlawfully possessing intoxicating liquor within
Hamiltoncounty as charged, fined him $100, and ordered that he be imprisoned until the fine and costs
were paid.Tumey obtained a bill of exceptions and carried the case on error to the court of common
pleas of Hamilton county. That court heard the case and reversed the judgment, on the ground that the
mayorwas disqualified as claimed. The state sought review by the Court of Appeals of the First Appellate
District of Ohio, which reversed the common pleas and affirmed the judgment of the mayor. On 4 May
1926, thestate Supreme Court refused Tumey s application to require the Court of Appeals to certify its
record inthe case. Tumey then filed a petition in error in that court as of right, asking that the judgment
of themayor s court and of the appellate court be reversed on constitutional grounds. On 11 May 1926,
theSupreme Court adjudged that the petition be dismissed for the reason that no debatable
constitutionalquestion was involved in the cause. The judgment was then brought to the US Supreme
Court upon a writ of error allowed by the Chief Justice of the state Supreme Court, to which it was
rightly directed.

Issue:

Whether the pecuniary interest of the Mayor and his village, and the system of courts inprosecuting
violations of the Prohibition Act, renders the mayor disqualified from hearing the case.

Held:
All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship,
personal bias, state policy, remoteness of interest would seem generally to be matters merely
of legislative discretion. But it certainly violates the 14th Amendment and deprives a defendant in
a criminalcase of due process of law to subject his liberty or property to the judgment of a court, the
judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against
him in hiscase. Herein, the mayor has authority, which he exercised in the case, to order that the person
sentencedto pay a fine shall remain in prison until the fine and costs are paid. The mayor thus has
a direct personalpecuniary interest in convicting the defendant who came before him for trial, in the $12
of costs imposedin his behalf, which he would not have received if the defendant had been acquitted.
This was not exceptional, but was the result of the normal operation of the law and the ordinance. The
system bywhich an inferior judge is paid for his service only when he convicts the defendant has not
become soembedded by custom in the general practice, either at common law or in this country, that it
can beregarded as due process of law, unless the costs usually imposed are so small that they may be
properlyignored as within the maxim de minimis non curat lex. The Court cannot regard the prospect
of receipt or loss of such an emolument in each case as a minute, remote, trifling, or insignificant
interest. It iscertainly not fair to each defendant brought before the mayor for the careful and judicial
consideration of his guilt or innocence that the prospect of such a prospective loss by the mayor should
weigh against hisacquittal. But the pecuniary interest of the mayor in the result of his judgment is not
the only reason forholding that due process of law is denied to the defendant here. The statutes were
drawn to stimulatesmall municipalities, in the country part of counties in which there are large cities, to
organize andmaintain courts to try persons accused of violations of the Prohibition Act everywhere in
the county. Theinducement is offered of dividing between the state and the village the large fines
provided by the law forits violations. The trial is to be had before a mayor without a jury, without
opportunity for retrial, andwith a review confined to questions of law presented by a bill of exceptions,
with no opportunity by thereviewing court to set aside the judgment on the weighing of evidence,
unless it should appear to be somanifestly against the evidence as to indicate mistake, bias, or willful
disregard of duty by the trial court.Thus, no matter what the evidence was against him, the defendant
had the right to have an impartial judge. He seasonably raised the objection, and was entitled to halt
the trial because of thedisqualification of the judge, which existed both because of his direct pecuniary
interest in the outcome,and because of his official motive to convict and to graduate the fine to help the
financial needs of thevillage. There were thus presented at the outset both features of the
disqualification. The judgment of

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Justia > US Law > US Case Law > US Supreme Court > Volume 273 > Tumey v. Ohio - 273 U.S. 510 > Case

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Tumey v. Ohio - 273 U.S. 510 (1927)

 Syllabus

 Case

U.S. Supreme Court

Tumey v. Ohio, 273 U.S. 510 (1927)

Tumey v. Ohio

No. 527

Argued November 29, 30, 1926

Decided March 7, 1927

273 U.S. 510

ERROR TO THE SUPREME COURT OF OHIO

Syllabus

1. To subject a defendant to trial in a criminal case involving his liberty or property before a judge having
a direct, personal, substantial interest in convicting him is a denial of due process of law. P. 273 U. S.
522.

2. A system by which an inferior judge is paid for his service only when he convicts the defendant has
not become so customary in the common law or in this country that it can be regarded as due process
where the costs usually imposed are not so small as to be within the maxim de minimis non curat
lex. Pp. 273 U. S. 523, 273 U. S. 531.

Page 273 U. S. 511

3. Under statutes of Ohio, offenses against State prohibition, involving a wide range of fines enforceable
by imprisonment, may be tried without a jury, before the mayor of any rural village situate in the county
(however populous) in which offenses occur; his judgment upon the facts is final and conclusive unless
so clearly unsupported as to indicate mistake, bias, or willful disregard of duty; the fines are divided
between the State and village; the village, by means of the fines collected, hires attorneys and
detectives to arrest alleged offenders anywhere in the county and prosecute them before the mayor; in
addition to his salary, the mayor, when he convicts, but not otherwise, receive his fees and cost
amounting to a substantial income; the fine offer a means of adding materially to the financial
prosperity of the village, for which the mayor, in his executive capacity, is responsible. Held violative of
the Fourteenth Amendment. Pp. 273 U. S. 520, 273 U. S. 531.

115 Oh.St. 701, reversed.

ERROR to a judgment of the Supreme Court of Ohio which declined to review a judgment of the State
Court of Appeals, 22 Oh.L.Rep. 634, reversing a judgment of the Court of Common Pleas of Hamilton
County, 25 Oh.Nisi Prius (N.S.) 580, which reversed a judgment of the Mayor of the Village of North
College Hill convicting and fining Tumey for violation of the Ohio Prohibition Act and ordering that he be
imprisoned until the fine and costs were paid.

Page 273 U. S. 514

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

The question in this case is whether certain statutes of Ohio, in providing for the trial by the mayor of a
village of one accused of violating the Prohibition Act of the State, deprive the accused of due process of
law and violate the Fourteenth Amendment to the Federal Constitution

Page 273 U. S. 515

because of the pecuniary and other interest which those statutes give the mayor in the result of the
trial.

Tumey, the plaintiff in error, hereafter to be called the defendant, was arrested and brought before
Mayor Pugh, of the Village of North College Hill, charged with unlawfully possessing intoxicating liquor.
He moved for his dismissal because of the disqualification of the Mayor to try him, under the Fourteenth
Amendment. The Mayor denied the motion, proceeded to the trial, convicted the defendant of
unlawfully possessing intoxicating liquor within Hamilton County, as charged, fined him $100, and
ordered that he be imprisoned until the fine and costs were paid. He obtained a bill of exceptions and
carried the case on error to the Court of Common Pleas of Hamilton County. That court heard the case
and reversed the judgment on the ground that the Mayor was disqualified, as claimed. 25 Ohio Nisi Prius
(N.S.) 580. The State sought review by the Court of Appeals of the first appellate district of Ohio, which
reversed the Common Pleas and affirmed the judgment of the Mayor. 23 Ohio Law Reporter, 634.

On May 4, 1926, the State Supreme Court refused defendant's application to require the Court of
Appeals to certify its record in the case. The defendant then filed a petition in error in that court as of
right, asking that the judgment of the Mayor's Court and of the Appellate Court be reversed on
constitutional grounds. On May 11, 1926, the Supreme Court adjudged that the petition be dismissed
for the reason that no debatable constitutional question was involved in the cause. The judgment was
then brought here upon a writ of error allowed by the Chief Justice of the State Supreme Court, to which
it was rightly directed. Matthews v. Huwe, Treasurer, 269 U. S. 262;Hetrick v. Village of Lindsey, 265 U. S.
384. This brings us to the merits of the case.

Page 273 U. S. 516

The defendant was arrested and charged with the unlawful possession of intoxicating liquor at White
Oak, another village in Hamilton County, Ohio, on a warrant issued by the Mayor of North College Hill.
The Mayor acted under the sections of the State Prohibition Act, and Ordinance No. 125 of the Village of
North College Hill adopted in pursuance thereof.

Section 6212-15 (Ohio General Code) provides that "No person shall after the passage of this act
manufacture possess . . . any intoxicating liquors. . . ."

Section 6212-17 provides that

". . . any person who violates the provisions of this act (General Code, Sections 6212-13 to 6212-20) for a
first offense shall be fined not less than one hundred dollars nor more than one thousand dollars; for a
second offense he shall be fined not less than three hundred dollars nor more than two thousand
dollars; for a third and each subsequent offense he shall be fined not less than five hundred dollars nor
more than two thousand dollars and be imprisoned in the state penitentiary not less than one year nor
more than five years. . . ."

The Mayor has authority, which he exercised in this case, to order that the person sentenced to pay a
fine shall remain in prison until the fine and costs are paid. At the time of this sentence, the prisoner
received a credit of sixty cents a day for each day's imprisonment. By a recent amendment, that credit
has been increased to one dollar and a half a day. Sections 13716, 13717, Ohio Gen.Code.

Section 62118 provides, in part, that

"Any justice of the peace, mayor, municipal or police judge, probate or common pleas judge within the
county with whom the affidavit is filed charging a violation of any of the provisions of this act (G.C.
Sections 6212-13 to 6212-20) when the offense is alleged to have been committed in the county in
which such mayor, justice of the peace, or judge

Page 273 U. S. 517

may be sitting, shall have final jurisdiction to try such cases upon such affidavits without a jury, unless
imprisonment is a part of the penalty, but error may be prosecuted to the judgment of such mayor,
justice of the peace, or judge as herein provided."
Error from the Mayor's Court lies to the court of Common Pleas of the County, and a bill of exceptions is
necessary to present questions arising on the evidence. Sections 10359, 10361, Ohio General Code. The
appellate review in respect of evidence is such that the judgment can only be set aside by the reviewing
court on the ground that it is so clearly unsupported by the weight of the evidence as to indicate some
misapprehension or mistake or bias on the part of the trial court, or a willful disregard of duties. Datesh
v. State, 23 Ohio Nisi Prius (N.S.) 273.

Section 6212-19 provides that

"Money arising from fines and forfeited bonds shall be paid one-half into the state treasury credited to
the general revenue fund, one-half to the treasury of the township, municipality or county where the
prosecution is held, according as to whether the officer hearing the case is a township, municipal, or
county officer."

Section 6212-37 provides that

"The council of any city or village may by ordinance authorize the use of any part of the fines collected
for the violation of any law prohibiting the manufacture and sale of intoxicating liquors, for the purpose
of hiring attorneys, detectives. or secret service officers to secure the enforcement of such prohibition
law. And such council are hereby authorized to appropriate not more than five hundred dollars annually
from the general revenue funds for the purpose of enforcing the law prohibiting the manufacture and
sale of intoxicating liquors, when there are no funds available from the fines collected for the violation
of such prohibitory law."

Under the authority of the last section, the Village Council of North College Hill passed Ordinance No.
125, as follows:

Page 273 U. S. 518

"An ordinance to provide for compensation to be paid from the secret service funds of the Village of
North College Hill, Hamilton County, Ohio, created by authority of Section 62137, of the General Code of
Ohio, to detectives, secret service officers, deputy marshals' and attorneys' fees, costs, etc., for services
in securing evidence necessary to conviction and prosecuting violation of the law of the state of Ohio
prohibiting the liquor traffic."

"Be it ordained by the Council of the Village of North College Hill, Hamilton County, Ohio:"

"Section I. That fifty percent of all moneys hereafter paid into the treasury of said village of North
College Hill, Ohio, that is one-half of the share of all fines collected and paid into and belonging to said
village of North College Hill, Ohio, received from fines collected under any law of the state of Ohio
prohibiting the liquor traffic, shall constitute a separate fund to be called the Secret Service Fund to be
used for the purpose of securing the enforcement of any prohibition law."

"Section II. That deputy marshals of the village of North College Hill, Ohio, shall receive as compensation
for their services in securing the evidence necessary to secure the conviction of persons violating the law
of the state of Ohio, prohibiting the liquor traffic, an amount of money equal to 15 percent. of the fine
collected, and other fees allowed by law."

"Section II. That the attorney at law of record prosecuting persons charged with violating the law of the
state of Ohio, prohibiting the liquor traffic, shall receive as compensation for legal services an amount
equal to 10 percent. of the fine collected, in all cases, whether the plea be guilty or not guilty."

"Section IV. That detectives and secret service officers shall receive as compensation for their services in
securing the evidence necessary to secure the conviction of

Page 273 U. S. 519

persons violating the law of the state of Ohio, prohibiting the liquor traffic, an amount of money equal
to 15 percent. of the fine collected."

"Section V. That the mayor of the village of North College Hill, Ohio, shall receive or retain the amount of
his costs in each case, in addition to his regular salary, as compensation for hearing such cases."

"Section VI. This ordinance is hereby declared to be an emergency ordinance, necessary to the
immediate preservation of the public peace and safety, made necessary by reason of the flagrant
violation of the laws of Ohio, enacted to prohibit traffic in intoxicating liquors, and shall be in effect from
and after its passage."

The duties of the Mayor of a village in Ohio are primarily executive. Sections of the General Code of Ohio
provide as follows:

"Section 4248. The executive power and authority of villages shall be vested in a mayor, clerk, treasurer,
marshal, street commissioner, and such other officers and departments thereof as are created by law."

"Section 4255. . . . He (the Mayor) shall be the chief conservator of the peace within the corporation. . . .
He shall be the president of the council, and shall preside at all regular and special meetings thereof, but
shall have no vote except in case of a tie."

"Section 4258. . . . He shall see that all ordinances, bylaws and resolutions are faithfully obeyed and
enforced."

"Section 4259. The mayor shall communicate to council from time to time a statement of the finances of
the municipality and such other information relating thereto and to the general condition of affairs of
the municipality as he deems proper or as may be required by council."

"Section 4262. The mayor shall supervise the conduct of all the officers of the corporation. . . . "

Page 273 U. S. 520

The fees which the Mayor and Marshal received in this case came to them by virtue of the general
statutes of the state applying to all state cases, liquor and otherwise. The Mayor was entitled to hold the
legal fees taxed in his favor. Ohio General Code, § 4270;State v. Nolte, 111 O.S. 486. Moreover, the
North College Hill village council sought to remove all doubt on this point by providing (§ 5, Ord.
125, supra), that he should receive or retain the amount of his costs in each case, in addition to his
regular salary, as compensation for hearing such cases. But no fees or costs in such cases are paid him
except by the defendant if convicted. There is, therefore, no way by which the Mayor may be paid for
his service as judge if he does not convict those who are brought before him, nor is there any fund from
which marshals, inspectors and detectives can be paid for their services in arresting and bringing to trial
and furnishing the evidence to convict in such cases, except it be from the initial $500 which the village
may vote from its treasury to set the court going, or from a fund created by the fines thereafter
collected from convicted defendants.

By an Act of 1913 (103 O.L. 290), the Mayor's court in villages in Hamilton County and in half a dozen
other counties with large cities was deprived of jurisdiction to hear and punish misdemeanors
committed in the county beyond the limits of the corporation. The Prohibition Act, known as the Crabbe
Act, adopted in 1920 (108 O.L., Pt. 1, 388 and Pt. 2, 1182) changed this, and gave to the Mayor of every
village in the State jurisdiction within the county in which it was situate to try violations of that Act.

Counsel for the State in their brief explain the vesting by state legislatures of this country of jurisdiction
in village courts as follows:

"The purpose of extending the jurisdiction in the first instance was to break up places of outlawry that
were located on the municipal boundary just outside of the city. The Legislature also

Page 273 U. S. 521

faced the situation that, in some of the cities the law enforcement agencies were failing to perform their
duty, and therefore, in order that those forces that believe in enforcement and upholding of law might
have some courts through which process could be had, it gave to mayors county-wide jurisdiction."

It was further pointed out in argument that the system by which the fines to be collected were to be
divided between the State and the village was for the proper purpose of stimulating the activities of the
village officers to such due enforcement.

The Village of North College Hill in Hamilton County, Ohio, is shown by the federal census to have a
population of 1104. That of Hamilton County, including the City of Cincinnati, is more than half a million.
The evidence discloses that Mayor Pugh came to office after ordinance No. 125 was adopted, and that
there was a division of public sentiment in the village as to whether the ordinance should continue in
effect. A petition opposing it and signed by a majority of the voters was presented to Mayor Pugh. To
this, the Mayor answered with the declaration that, if the village was in need of finances, he was in favor
of, and would carry on, "the Liquor Court," as it was popularly called, but that, if the court was not
needed for village financial reasons, he would not do so. It appears that substantial sums were
expended out of the village treasury, from the fund made up of the fines thus collected, for village
improvements and repairs. The Mayor was the owner of a house in the village.
Between May 11, 1923 and December 31, 1923, the total amount of fines for violation of the prohibition
law, collected by this village court, was upwards of $20,000, from which the State received $8,992.50,
North College Hill received $4,471.25 for its general uses, $2,697.25 was placed to the credit of the
village safety fund, and the balance was put in the secret service fund. Out of this, the person acting as
prosecutor in the liquor court received

Page 273 U. S. 522

in that period $1,796.50; the deputy marshals, inspectors and other employees, including the
detectives, received $2,697.75, and $438.50 was paid for cost in transporting prisoners, serving writs
and other services in connection with the trial of these cases. Mayor Pugh received $696.35 from these
liquor cases during that period as his fees and costs, in addition to his regular salary.

That officers acting in a judicial or quasi-judicial capacity are disqualified by their interest in the
controversy to be decided is, of course, the general rule. Dimes v. Grand Junction Canal, 3 H.L.C.
759; Gregory v. Railroad, 4 O.S. 675; Peace v. Atwood, 13 Mass. 324; Taylor v. Commissioners, 105 Mass.
225; Kentish Artillery v. Gardiner, 15 R.I. 296; Moses v. Julian, 45 N.H. 52; State v. Crane, 36 N.J.L.
394; Railroad Company v. Howard, 20 Mich. 18; Stockwell v. Township, 22 Mich. 341; Findley v. Smith, 42
W.Va. 299; Nettleton's Appeal, 28 Conn. 268; Cooley's Constitutional Limitations, 7th ed., p. 592, et
seq. Nice questions, however, often arise as to what the degree or nature of the interest must be. One is
in respect of the effect of the membership of a judge in a class of taxpayers or others to be affected by a
principle of law, statutory or constitutional, to be applied in a case between other parties and in which
the judge has no other interest. Then the circumstance that there is no judge not equally disqualified to
act in such a case has been held to affect the question. Wheeling v. Black, 25 W.Va. 266, 280; Peck v.
Freeholders of Essex, 20 N.J.L. 457; Dimes v. Grand Junction Canal,3 H.L.C. 759 (see Baron Parke's
Answer for the Judges, pp. 785, 787); Year Book, 8 Henry 6, 19, s.c. 2 Roll.Abridg. 93; Evans v. Gore, 253
U. S. 245, 253 U. S. 247; Stuart v. Mechanics' & Farmers' Bank, 19 Johns. 496; Ranger v. Railroad, 5 H.L.C.
72. We are not embarrassed by such considerations here, for there were available in this case other
judicial officers who had

Page 273 U. S. 523

no disqualification either by reason of the character of their compensation or their relation to the village
government.

All questions of judicial qualification may not involve constitutional validity. Thus, matters of kinship,
personal bias, state policy, remoteness of interest, would seem generally to be matters merely of
legislative discretion. Wheeling v. Black, 25 W.Va. 266, 270. But it certainly violates the Fourteenth
Amendment, and deprives a defendant in a criminal case of due process of law, to subject his liberty or
property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary
interest in reaching a conclusion against him in his case.

The Mayor of the Village of North College Hill, Ohio, had a direct, personal, pecuniary interest in
convicting the defendant who came before him for trial, in the twelve dollars of costs imposed in his
behalf, which he would not have received if the defendant had been acquitted. This was not
exceptional, but was the result of the normal operation of the law and the ordinance. Counsel for the
State do not deny this, but assert the validity of the practice as an exception to the general rule. The rely
upon the cases ofOwnbey v. Morgan, 256 U. S. 94; Murray's Lessee v. Hoboken Land and Improvement
Company, 18 How. 272, 59 U. S. 276-280. These cases show that, in determining what due process of
law is, under the Fifth or Fourteenth Amendment, the Court must look to those settled usages and
modes of proceeding existing in the common and statute law of England before the emigration of our
ancestors, which were shown not to have been unsuited to their civil and political condition by having
been acted on by them after the settlement of this country. Counsel contend that, in Ohio and in other
States, in the economy which it is found necessary to maintain in the administration of justice in the
inferior courts by justices of the peace and by judicial officers of like jurisdiction, the only compensation
which the State and county

Page 273 U. S. 524

and township can afford is the fees and costs earned by them, and that such compensation is so small
that it is not to be regarded as likely to influence improperly a judicial officer in the discharge of his duty,
or as prejudicing the defendant in securing justice, even though the magistrate will receive nothing if the
defendant is not convicted.

We have been referred to no cases at common law in England prior to the separation of colonies from
the mother country showing a practice that inferior judicial officers were dependent upon the
conviction of the defendant for receiving their compensation. Indeed, in analogous cases, it is very clear
that the slightest pecuniary interest of any officer, judicial or quasi-judicial, in the resolving of the
subject matter which he was to decide rendered the decision voidable. Bonham's Case, 8 Coke, 118a;
s.c. 2 Brownlow and Goldesborough's Rep. 255; City of London v. Wood, 12 Modern Rep. 669, 687;Day v.
Savage, Hobart 85, 87; Hesketh v. Braddock, 3 Burrows 1847, 1856, 1857 and 1858.

As early as the 12th Richard II, A.D. 1388, it was provided that there should be a commission of the
justices of the peace, with six justices in the county once a quarter, which might sit for three days, and
that the justices should receive four shillings a day "as wages," to be paid by the sheriffs out of a fund
made up of fines and amercements, and that that fund should be added to out of the fines and
amercements from the courts of the Lords of the Franchises, which were hundred courts allowed by the
King by grant to individuals.

It was required that the justices of the peace should be knights, esquires or gentlemen of the land --
qualifications that were not modified until 1906. The wages paid were used "to defray their common
diet," and soon became obsolete. 1 Holdsworth's History of English Law, 288, 289. The wages paid were
not dependent on conviction

Page 273 U. S. 525

of the defendant. They were paid at a time when the distinction between torts and criminal case was
not clear, Holdsworth, Vol. 2, 363, 365; Vol. 3, 328, and they came from a fund which was created by
fines and amercements collected from both sides in the controversy. There was always a plaintiff,
whether in the action for a tort or the prosecution for an offense. In the latter, he was called the
prosecutor. If he failed to prove his case, whether civil or criminal, he was subject to amercement pro
falso clamore, while if he succeeded, the defendant was in misericordia. See Comm. v. Johnson, 5 S. & R.
(Pa.) 195, 198; Musser v. Good, 11 Id. 247. Thus, in the outcome, someone would be amerced in every
case, and the amercements generally went to the Crown, and the fund was considerable. The Statute of
Richard II remained on the statute book until 1855, when it was repealed by the 18th and 19th Victoria.
Meantime, the hundred courts by franchise had largely disappeared. The wages referred to were not
part of the costs. The costs at common law were the amounts paid either by the plaintiff or prosecutor
or by the defendant for the witnesses or services of the court officers. Burn's Justice, Vol. 1, p. 628.
Chitty's Criminal Law, 4 ed. 1841, Vol. 1, 829.See also 14 George III, ch. 20, 1774. For hundreds of years,
the justices of the peace of England seem not to have received compensation for court work. Instead of
that, they were required, upon entering upon the office, to pay certain fees. Holdsworth, Vol. 1, p. 289;
19 Halsbury's Laws of England, § 1152. Local judges in towns are paid salaries.

There was at the common law the greatest sensitiveness over the existence of any pecuniary interest,
however small or infinitesimal, in the justices of the peace. In Hawkins, 2 Pleas of the Crown, we find the
following:

"The general rule of law certainly is that justices of the peace ought not to execute their office in their
own case [citing 1 Salk. 396], and even in cases where such

Page 273 U. S. 526

proceeding seems indispensably necessary, as in being publicly assaulted or personally abused, or their
authority otherwise contemned while in the execution of their duty, yet if another justice be present, his
assistance should be required to punish the offender (Stra. 240)."

"And by the common law, if an order of removal were made by two justices, and one of them was an
inhabitant of the parish from which the pauper was removed, such order was illegal and bad on the
ground that the justice who was an inhabitant was interested, as being liable to the poor's rate. (Rex v.
Great Chart, Burr. S.C.194, Stra. 1173.)"

And this strict principle, unless there is relief by the statute, is seen in modern cases.Queen v. The
Recorder of Cambridge, 8 Ellis & Blackburn, 637; Regina v. Hammond, 9 Law Times Reports (N.S.)
423; The Queen v. Rand, Law Reports, 1st Queen's Bench, 230; Queen v. Gafford, 1st Queen's Bench
Division, 381; 19 Halsbury's Laws of England 1156.

There was, then, no usage at common law by which justices of the peace or inferior judicial officers were
paid fees on condition that they convicted the defendants, and such a practice certainly cannot find
support as due process of law in English precedent. It may be that the principle, as stated in Blackstone,
Book 3rd, page 400, that the King shall neither pay nor receive costs, because it is the King's prerogative
not to pay them to a subject and is beneath his dignity to receive them, was misunderstood and led, as
suggested by Mr. Lewis in his edition of Blackstone, Vol. 3, p. 400, n. 60, to the practice in some States,
in minor cases, of allowing inferior judges no compensation except by fees collected of the convicted
defendant; but whether it did or not, the principle relied on did not support the practice. That practice
has prevailed, and still prevails, in Arkansas, Kentucky, Nebraska, North Carolina, Georgia, Ohio and
Texas, and it seems

Page 273 U. S. 527

at one time to have obtained in Indiana, Oregon, Illinois and Alabama.

In two of these States only has the question been considered by their courts, and it has been held that
provision for payment to the judge of fees only in case of conviction does not disqualify him. Those
are Bennett v. State, 4 Tex.App. 72; Wellmaker v. Terrell, 3 Ga.App. 791. There is no discussion in either
of the question of due process of law. The existence of a statute authorizing the practice seems to have
been the controlling consideration. Two other cases are cited. In Ex parte Guerrero, 69 Cal. 88, the judge
was paid a regular salary, fixed by law. The fund out of which this was paid was increased by fees and
fines collected in his court, but there is no evidence that payment of his salary was dependent on the
amount of his collections or convictions. InHerbert v. Baltimore County, 97 Md. 639, the action was by a
justice of the peace against a county for services in criminal cases. A new law limited him to $10 a
month. The statement of the case does not distinctly show that, in convictions, he would have had a
larger compensation from his costs collected out of the defendant, but this may be assumed from the
argument. His contention was that the new law was invalid because it did not give the defendants
before him due process. The court held against him, chiefly on the ground that he must be satisfied with
the compensation the law afforded him. Responding to his argument that the new law was invalid
because justices would be induced to convict when in justice they should acquit, the court said:

"We cannot recognize the force of this suggestion, founded as it is upon the assumption that the justices
will violate their oaths and the duties of their office, and not upon anything that the law authorizes to be
done."

So far as the case goes, it is an authority for the contention of the State, but the issue thus raised was
not

Page 273 U. S. 528

considered at length, and was not one which, in such an action, the court would be patient to hear
pressed by the justice whose constitutional rights were not affected.Tyler v. Court, 179 U. S. 405, 179 U.
S. 409; California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 199 U. S. 318.

In the case of Probasco v. Raine, Auditor, 50 O.S. 378, the question arose whether the fee of 4 percent.
payable to county auditors for placing omitted property on the duplicate list for taxation, which required
investigation and quasi-judicial consideration, was invalid. The court held that it was not, and that the
objection urged there could not be based on the argument that a man could not be a judge in his own
case; that the auditor had no case to be adjudged, but that, on the contrary, he was the taxing officer
before whom other parties were cited to appear and show cause why they should not bear their equal
burden of taxation. The court said that the action of the auditor was not final so as to cut off further
inquiry, but that the whole case might be gone into anew by proper proceedings in court. An exactly
opposite conclusion was reached by the United States Circuit Court for the Northern District of Ohio
in Meyers v. Shields,61 Fed. 713, 725 et seq.

In other States than those above-mentioned, the minor courts are paid for their services by the State or
county regardless of acquittal or conviction, except that, in Virginia, the minor courts receive one-half of
the usual fees where there is acquittal. Four States have put into their constitutions a provision that the
State must pay the costs in such cases in case of acquittal. They are California, Florida, Louisiana and
South Carolina.

The strict common law rule was adopted in this country as one to be enforced where nothing but the
common law controlled, and citizens and taxpayers have been held incompetent to sit in suits against
the municipal corporation of which they have been residents. Diveny v.

Page 273 U. S. 529

Elmira, 51 N.Y. 506; Corwein v. Names, 11 Johns. 76; Clark v. Lamb, 2 Allen 396;Dively v. Cedar Falls, 21
Iowa 565; Fulweiler v. St. Louis, 61 Mo. 479; Petition of New Boston, 49 N.H. 328; Commonwealth v.
McLane, 4 Gray 427; Fine v. St. Louis Public Schools, 30 Mo. 166, 173. With other courts, however, and
with the legislatures, the strict rule seemed to be inconvenient, impracticable, and unnecessary, and the
view was taken that such remote or minute interest in the litigation might be declared by the Legislature
not to be a reason for disqualification of a judge or juror.

A case, much cited, in which this conclusion was reached and in which the old English corporation cases
were considered was that of City Council v. Pepper, 1 Richardson (S.C.) 364. The recorder of the City of
Charleston sentenced a nonresident of the city for violation of a city ordinance requiring him to take out
a license for what he did or to pay a fine not exceeding $20. The contention was that the defendant was
a noncorporator and nonresident, and not subject to the jurisdiction of the city court; that the recorder
was a corporator and interested in the penalty, and therefore was not competent to try the cause. The
Court said (p. 366) in respect to Hesketh v. Braddock,3 Burrows 1847, supra:

"It will be remarked that that case depends altogether upon the common law, and if the city court
depended upon the same for its jurisdiction, the objection might be fatal. But the establishment and
jurisdiction of the city court commences with the Act of 1801. By that Act, it is clothed with the power of
trying all offences against the by laws of the city, and for that purpose is given concurrent jurisdiction
with the court of Sessions. This grant of power is from all the people of the State, through their
Legislature, and surely they have the power to dispense with the common law objection that the
corporators

Page 273 U. S. 530

were interested, and ought not to be intrusted with the enforcement of their laws against others. The
authority given to the city court to try all offenders against the city ordinances impliedly declares that,
notwithstanding the common law objection, it was right and proper to give it the power to enforce the
city law against all offenders. That there was great reason in this cannot be doubted when it is
remembered that the interest of the corporators is so minute as not to be even thought of by sheriff,
juror, or judge. It is very much like the interest which similar officers would feel in enforcing a State law
the sanction of which was a penalty. The sum thus to be recovered goes in exoneration of some part of
the burden of government to which every citizen is subjected, but such an interest has no effect upon
the mind. It is too slight to excite prejudice against a defendant. The same thing is the case here. For the
judge, sheriff and jurors, are members of a corporation of many thousand members. What interest of
value have they in a fine of twenty dollars? It would put a most eminent calculator to great trouble to
ascertain the very minute grain of interest which each of these gentlemen might have. To remove so
shadowy and slight an objection, the Legislature thought proper to clothe the city court, consisting of its
judge, clerk, sheriff and jurors, with authority to try the defendant, and he cannot now object to it."

And the same view is taken in Commonwealth v. Ryan, 5 Mass. 90; Commonwealth v. Reed, 1 Gray 472,
475; Thomas v. Mt. Vernon, 9 Ohio 290; Commissioners v. Lytle, 3 Ohio 289; Wheeling v. Black, 25 W.Va.
266, 280; Board of Justices v. Fennimore, 1 N.J.L.190; Foreman v. Mariana, 43 Ark. 324; Cartersville v.
Lyon, 69 Ga. 577; Omaha v. Olmstead, 5 Neb. 446; Hill v. Wells, 6 Pickering 104; Commonwealth v.
Emery, 11 Cushing 406; Barnett

Page 273 U. S. 531

v. State, 4 Tex.App. 72; Wellmaker v. Terrell, 3 Ga.App. 791; State v. Craig, 80 Maine 85.

Mr. Justice Cooley, in his work on Constitutional Limitations, 7th edition, page 594, points out that the
real ground of the ruling in these cases is that

"interest is so remote, trifling and insignificant that it may fairly be supposed to be incapable of affecting
the judgment of or of influencing the conduct of an individual. And where penalties are imposed, to be
recovered only in a municipal court, the judge or jurors in which would be interested as corporators in
the recovery, the law providing for such recovery must be regarded as precluding the objection of
interest."

But the learned judge then proceeds:

"But except in cases resting upon such reasons, we do not see how the legislature can have any power
to abolish a maxim which is among the fundamentals of judicial authority."

Referring then to a remark in the case of the Matter of Leefe, 2 Barb.Ch. 39, that the people of the State,
when framing their constitution, might possibly establish so great an anomaly, if they saw fit, the
learned author says:

"Even this must be deemed doubtful, since the adoption of the fourteenth article of the amendments to
the Federal Constitution, which denies to the state the right to deprive one of life, liberty or property
without due process of law."
From this review, we conclude that a system by which an inferior judge is paid for his service only when
he convicts the defendant has not become so embedded by custom in the general practice either at
common law or in this country that it can be regarded as due process of law unless the costs usually
imposed are so small that they may be properly ignored as within the maxim de minimis non curat lex.

The Mayor received for his fees and costs in the present case $12, and from such costs under the
Prohibition Act

Page 273 U. S. 532

for seven months he made about $100 a month, in addition to his salary. We cannot regard the prospect
of receipt or loss of such an emolument in each case as a minute, remote, trifling or insignificant
interest. It is certainly not fair to each defendant, brought before the Mayor for the careful and judicial
consideration of his guilt or innocence, that the prospect of such a loss by the Mayor should weigh
against his acquittal.

These are not cases in which the penalties and the costs are negligible. The field of jurisdiction is not
that of a small community engaged in enforcing its own local regulations. The court is a state agency
imposing substantial punishment, and the cases to be considered are gathered from the whole county
by the energy of the village marshals and detectives regularly employed by the village for the purpose. It
is not to be treated as a mere village tribunal for village peccadillos. There are doubtless mayors who
would not allow such a consideration as $12 costs in each case to affect their judgment in it; but the
requirement of due process of law in judicial procedure is not satisfied by the argument that men of the
highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every
procedure which would offer a possible temptation to the average man as a judge to forget the burden
of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear,
and true between the State and the accused denies the latter due process of law.

But the pecuniary interest of the Mayor in the result of his judgment is not the only reason for holding
that due process of law is denied to the defendant here. The statutes were drawn to stimulate small
municipalities in the country part of counties in which there are large cities, to organize and maintain
courts to try persons accused of violations of the Prohibition Act everywhere in the county. The
inducement is offered of dividing between

Page 273 U. S. 533

the State and the village the large fines provided by the law for its violations. The trial is to be had
before a mayor without a jury, without opportunity for retrial, and with a review confined to questions
of law presented by a bill of exceptions, with no opportunity by the reviewing court to set aside the
judgment on the weighing of evidence unless it should appear to be so manifestly against the evidence
as to indicate mistake, bias or willful disregard of duty by the trial court. The statute specifically
authorizes the village to employ detectives, deputy marshals, and other assistants to detect crime of this
kind all over the county, and to bring offenders before the Mayor's court, and it offers to the village
council and its officers a means of substantially adding to the income of the village to relieve it from
further taxation. The mayor is the chief executive of the village. He supervises all the other executive
officers. He is charged with the business of looking after the finances of the village. It appears from the
evidence in this case, and would be plain if the evidence did not show it, that the law is calculated to
awaken the interest of all those in the village charged with the responsibility of raising the public money
and expending it, in the pecuniarily successful conduct of such a court. The mayor represents the village,
and cannot escape his representative capacity. On the other hand, he is given the judicial duty, first, of
determining whether the defendant is guilty at all, and second, having found his guilt, to measure his
punishment between $100 as a minimum and $1,000 as a maximum for first offenses, and $300 as a
minimum and $2,000 as a maximum for second offenses. With his interest as mayor in the financial
condition of the village, and his responsibility therefor, might not a defendant with reason say that he
feared he could not get a fair trial or a fair sentence from one who would have so strong a motive to
help his village by conviction and a heavy fine? The old English cases, cited above, of the

Page 273 U. S. 534

days of Coke and Holt and Mansfield, are not nearly so strong. A situation in which an official perforce
occupies two practically and seriously inconsistent positions, one partisan and the other judicial,
necessarily involves a lack of due process of law in the trial of defendants charged with crimes before
him. City of Boston v. Baldwin, 139 Mass. 315; Florida ex rel. Colcord v. Young, 31 Fla. 594. It is, of
course, so common to vest the mayor of villages with inferior judicial functions that the mere union of
the executive power and the judicial power in him cannot be said to violate due process of law. The
minor penalties usually attaching to the ordinances of a village council, or to the misdemeanors in which
the mayor may pronounce final judgment without a jury, do not involve any such addition to the
revenue of the village as to justify the fear that the mayor would be influenced in his judicial judgment
by that fact. The difference between such a case and the plan and operation of the statutes before us is
so plain as not to call for further elaboration.

Counsel for the State argue that it has been decided by this Court that the legislature of a State may
provide such system of courts as it chooses; that there is nothing in the Fourteenth Amendment that
requires a jury trial for any offender; that it may give such territorial jurisdiction to its courts as it sees
fit, and therefore that there is nothing sinister or constitutionally invalid in giving to a village mayor the
jurisdiction of a justice of the peace to try misdemeanors committed anywhere in the county, even
though the mayor presides over a village of 1,100 people and exercises jurisdiction over offenses
committed in a county of 500,000. This is true, and is established by the decisions of this Court
in Missouri v. Lewis, 101 U. S. 22, 101 U. S. 30; In re Claasen, 140 U. S. 200. See also Carey v. State, 70
Ohio State 121. It is also correctly pointed out that it is completely within the power of the legislature to
dispose of the fines collected

Page 273 U. S. 535

in criminal cases as it will, and it may therefore divide the fines as it does here, one-half to the State and
one-half to the village by whose mayor they are imposed and collected. It is further said with truth that
the legislature of a State may, and often ought to, stimulate prosecutions for crime by offering to those
who shall initiate and carry on such prosecutions rewards for thus acting in the interest of the State and
the people. The legislature may offer rewards or a percentage of the recovery to informers. United
States v. Murphy & Morgan, 16 Pet. 203. It may authorize the employment of detectives. But these
principles do not at all affect the question whether the State, by the operation of the statutes we have
considered, has not vested the judicial power in one who, by reason of his interest both as an individual
and as chief executive of the village, is disqualified to exercise it in the trial of the defendant.

It is finally argued that the evidence shows clearly that the defendant was guilty, and that he was only
fined $100, which was the minimum amount, and therefore that he cannot complain of a lack of due
process, either in his conviction or in the amount of the judgment. The plea was not guilty, and he was
convicted. No matter what the evidence was against him, he had the right to have an impartial judge. He
seasonably raised the objection, and was entitled to halt the trial because of the disqualification of the
judge, which existed both because of his direct pecuniary interest in the outcome and because of his
official motive to convict and to graduate the fine to help the financial needs of the village. There were
thus presented at the outset both features of the disqualification.

The judgment of the Supreme Court of Ohio must be reversed, and the cause remanded for further
proceedings not inconsistent with this opinion.

Judgment reversed.

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TUMEY v. STATE OF OHIO.

273 U.S. 510 (47 S.Ct. 437, 71 L.Ed. 749)

TUMEY v. STATE OF OHIO.

No. 527.

Argued: Nov. 29, 30, 1926.

Decided: March 7, 1927.

 Opinion, TAFT [HTML]

Messrs. Edward P. Moulinier, James L. Magrish, and Harry H. Shafer, all of Cincinnati, Ohio, for plaintiff
in error.

Argument of Counsel from pages 511-512 intentionally omitted

Messrs. Wayne B. Wheeler and Edward Dunford, both of Washington, D. C., for the State of Ohio.

Argument of Counsel from page 513 intentionally omitted

TOP

Mr. Chief Justice TAFT delivered the opinion of the Court.

The question in this case is whether certain statutes of Ohio, in providing for the trial by the mayor of a
village of one accused of violating the Prohibition Act of the state (Gen. Code, Ohio, § 6212-13 et seq.),
deprive the accused of due process of law and violate the Fourteenth Amendment to the Federal
Constitution, because of the pecuniary and other interest which those statutes give the mayor in the
result of the trial.

Tumey, the plaintiff in error hereafter to be called the defendant, was arrested and brought before
Mayor Pugh, of the village of North College Hill, charged with unlawfully possessing intoxicating liquor.
He moved for his dismissal because of the disqualification of the mayor to try him under the Fourteenth
Amendment. The mayor denied the motion, proceeded to the trial, convicted the defendant of
unlawfully possessing intoxicating liquor within Hamilton county as charged, fined him $100, and
ordered that he be imprisoned until the fine and costs were paid. He obtained a bill of exceptions and
carried the case on error to the court of common pleas of Hamilton county. That court heard the case
and reversed the judgment, on the ground that the mayor was disqualified as claimed. 25 Ohio Nisi Prius
(N. S.) 580. The state sought review by the Court of Appeals of the First Appellate District of Ohio, which
reversed the common pleas and affirmed the judgment of the mayor. 23 Ohio Law Reporter, 634.

On May 4, 1926, the state Supreme Court refused defendant's application to require the Court of
Appeals to certify its record in the case. The defendant then filed a petition in error in that court as of
right, asking that the judgment of the mayor's court and of the appellate court be reversed on
constitutional grounds. On May 11, 1926, the Supreme Court adjudged that the petition be dismissed
for the reason that no debatable constitutional question was involved in the cause. The judgment was
then brought here upon a writ of error allowed by the Chief Justice of the state Supreme Court, to which
it was rightly directed. Matthews v. Huwe, Treasurer, 269 U. S. 262, 46 S. Ct. 108, 70 L. Ed. 266; Hetrick
v. Village of Lindsey, 265 U. S. 384, 44 S. Ct. 486, 68 L. Ed. 1065. This brings us to the merits of the case.

The defendant was arrested and charged with the unlawful possession of intoxicating liquor at White
Oak, another village in Hamilton county, Ohio, on a warrant issued by the mayor of North College Hill.
The mayor acted under the sections of the state Prohibition Act and Ordinance No. 125 of the village of
North College Hill adopted by pursuance thereof.

Section 6212-15, General Code, Ohio, provides that:

'No person shall, after the passage of this act * * * manufacture, * * * possess, * * * any intoxicating
liquors. * * *'

Section 6212-17 provides that:

'* * * Any person who violates the provisions of this act (G. C. §§ 6212-13 to 6212-20) for a first offense
shall be fined not less than one hundred dollars nor more than one thousand dollars; for a second
offense he shall be fined not less than three hundred dollars nor more than two thousand dollars; for a
third and each subsequent offense, he shall be fined not less than five hundred dollars nor more than
two thousand dollars and be imprisoned in the state penitentiary not less than one year nor more than
five years. * * *'

The mayor has authority, which he exercised in this case, to order that the person sentenced to pay a
fine shall remain in prison until the fine and costs are paid. At the time of this sentence, the prisoner
received a credit of 60 cents a day for each day's imprisonment. By a recent amendment, that credit has
increased to $1.50 a day Sections 13716, 13717, Gen. Code Ohio.

Section 6212-18 provides, in part, that:

'Any justice of the peace, mayor, municipal or police judge, probate or common pleas judge within the
county with whom the affidavit is filed charging a violation of any of the provisions of this act (G. C. §§
6212-13 to 6212-20) when the offense is alleged to have been committed in the county in which such
mayor, justice of the peace, or judge may be sitting, shall have final jurisdiction to try such cases upon
such affidavits without a jury, unless imprisonment is a part to the penalty, but error may be prosecuted
to the judgment of such mayor, justice of the peace, or judge as herein provided.'
Error from the mayor's court lies to the court of common pleas of the county, and a bill of exceptions is
necessary to present questions arising on the evidence. Sections 10359, 10361, General Code Ohio. The
appellate review in respect to evidence is such that the judgment can only be set aside by the reviewing
court on the ground that it is so clearly unsupported by the weight of the evidence as to indicate some
misapprehension or mistake or bias on the part of the trial court or a wilful disregard of duties. Datesh v.
State, 23 Ohio Nisi Prius (N. S.) 273.

Section 6212-19, provides that:

'Money arising from fines and forfeited bonds shall be paid one-half into the state treasury credited to
the general revenue fund, one-half to the treasury of the township, municipality or county where the
prosecution is held, according as to whether the officer hearing the case is a township, municipal, or
county officer.'

Section 6212-37 provides that:

'The council of any city or village may, by ordinance, authorize the use of any part of the fines collected
for the violation of any law prohibiting the manufacture and sale of intoxicating liquors, for the purpose
of hiring attorneys, detectives, or secret service officers to secure the enforcement of such prohibition
law. And such council are hereby authorized to appropriate not more than five hundred dollars annually
from the general revenue fund, for the purpose of enforcing the law prohibiting the manufacture and
sale of intoxicating liquors, when there are no funds available from the fines collected for the violation
of such prohibitory law.' 109 Ohio Laws, p. 9, § 17.

Under the authority of the last section, the village council of North College Hill passed Ordinance No.
125, as follows: 'An ordinance to provide for compensation to be paid from the secret service funds of
the village of North College Hill, Hamilton county, Ohio, created by authority of section 6212-37, of the
General Code of Ohio, to detectives, secret service officers, deputy marshals' and attorneys' fees, costs,
etc., for services in securing evidence necessary to conviction and prosecuting violation of the law of the
state of Ohio prohibiting the liquor traffic.

'Be it ordained by the council of the village of North College Hill, Hamilton county, Ohio:

'Section I. That fifty per cent. of all moneys hereafter paid into the treasury to said village of North
College Hill, Ohio, that is one-half of the share of all fines collected and paid into and belonging to said
village of North College Hill, Ohio, received from fines collected under any law of the state of Ohio,
prohibiting the liquor traffic, shall constitute a separate fund to be called the secret service fund to be
used for the purpose of securing the enforcement of any prohibition law.

'Section II. That deputy marshals of the village of North College Hill, Ohio, shall receive as compensation
for their services in securing the evidence necessary to secure the conviction of persons violating the law
of the state of Ohio, prohibiting the liquor traffic, an amount of money equal to 15 per cent. of the fine
collected, and other fees allowed by law.
'Section III. That the attorney at law of record prosecuting persons charged with violating the law of the
state of Ohio, prohibiting the liquor traffic, shall receive as compensation for legal services an amount
equal to 10 per cent. of the fine collected, in all cases, whether the plea be guilty or not guilty.

'Section IV. That detectives and secret service officers shall receive as compensation for their services in
securing the evidence necessary to secure the conviction of persons violating the law of the state of
Ohio, prohibiting the liquor traffic, an amount of money equal to 15 per cent. of the fine collected.

'Section V. That the mayor of the village of North College Hill, Ohio, shall receive or retain the amount of
his costs in each case, in addition to his regular salary, as compensation for hearing such cases.

'Section VI. This ordinance is hereby declared to be an emergency ordinance, necessary to the
immediate preservation of the public peace and safety, made necessary by reason of the flagrant
violation of the laws of Ohio, enacted to prohibit traffic in intoxicating liquors, and shall be in effect from
and after this passage.'

The duties of the mayor of a village in Ohio are primarily executive. Section 4248 of the General Code of
Ohio provides as follows:

'Section 4248. The executive power and authority of villages shall be vested in a mayor, clerk, treasurer,
marshal, street commissioner, and such other officers and departments thereof as are created by law.

'Section 4255. * * * He (the mayor) shall be the chief conservator of the peace within the corporation. *
* * He shall be the president of the council, and shall preside at all regular and special meetings thereof,
but shall have no vote except in case of a tie.

'Section 4258. * * * He shall see that all ordinances, by-laws and resolutions of the council are faithfully
obeyed and enforced. * * *

'Section 4259. The mayor shall communicate to council from time to time a statement of the finances of
the municipality, and such other information relating thereto and to the general condition of the affairs
of the municipality as he deems proper or as may be required by council.

'Section 4262. The mayor shall supervise the conduct of the officers of the corporation. * * *' The fees
which the mayor and marshal received in this case came to them by virtue of the general statutes of the
state applying to all state cases, liquor and otherwise. The mayor was entitled to hold the legal fees
taxed in his favor. General Code Ohio, § 4270; State v. Nolte, 111 Ohio St. 486, 146 N. E. 51, 37 A. L. R.
1426. Moreover, the North College Hill village council sought to remove all doubt on this point by
providing (section 5, Ordinance 125, supra), that he should receive or retain the amount of his costs in
each case in addition to his regular salary, as compensation for hearing such cases. But no fees or costs
in such cases are paid him, except by the defendant, if convicted. There is, therefore, no way by which
the mayor may be paid for his service as judge, if he does not convict those who are brought before him;
nor is there any fund from which marshals, inspectors and detectives can be paid for their services in
arresting and bringing to trial and furnishing the evidence to convict in such cases, except it be from the
initial $500 which the village may vote from its treasury to set the court going or from a fund created by
the fines thereafter collected from convicted defendants.

By an act of 1913 (103 O. L. 290), the mayor's court in villages in Hamilton county, and in half a dozen
other counties with large cities, was deprived of jurisdiction to hear and punish misdemeanors
committed in the county beyond the limits of the corporation. The Prohibition Act, known as the Crabbe
Act, adopted in 1920 (108 O. L. pt. 1, p. 388, and part 2, p. 1182) changed this and gave to the mayor of
every village in the state jurisdiction within the county in which it was situate to try violations of that
act.

Counsel for the state in their brief explain the vesting by state Legislatures of this country of jurisdiction
in village courts as follows:

'The purpose of extending the jurisdiction in the first instance was to break up places of outlawry that
were located on the municipal boundary just outside of the city. The Legislature also faced the situation
that in some of the cities the law enforcement agencies were failing to perform their duty, and
therefore, in order that those forces that believe in enforcement and upholding of law might have some
courts through which process could be had, it gave to mayors county-wide jurisdiction.'

It was further pointed out in argument that the system by which the fines to be collected were to be
divided between the state and the village was for the proper purpose of stimulating the activities of the
village officers to such due enforcement.

The village of North College Hill, in Hamilton county, Ohio, is shown by the federal census to have a
population of 1,104. That of Hamilton county, including the city of Cincinnati, is more than half a million.
The evidence discloses that Mayor Pugh came to office after Ordinance No. 125 was adopted, and that
there was a division of public sentiment in the village as to whether the ordinance should continue in
effect. A petition opposing it and signed by a majority of the voters was presented to Mayor Pugh. To
this the mayor answered with the declaration that, if the village was in need of finances, he was in favor
of and would carry on 'the liquor court,' as it was popularly called, but that, if the court was not needed
for village financial reasons, he would not do so. It appears that substantial sums were expended out of
the village treasury from the fund made up of the fines thus collected for village improvements and
repairs. The mayor was the owner of a house in the village.

Between May 11, 1923, and December 31, 1923, the total amount of fines for violation of the
prohibition law collected by this village court was upwards of $20,000, from which the state received
$8,992.50, North College Hill received $4,471.25 for its general uses, $2,697.25 was placed to the credit
of the village safety fund, and the balance was put in the secret service fund. Out of this, the person
acting as prosecutor in the liquor court received in that period $1,796.50; the deputy marshals,
inspectors and other employees, including the detectives, received $2,697.75; and $438.50 was paid for
costs in transporting prisoners, serving writs and other services in connection with the trial of these
cases. Mayor Pugh received $696.35 from these liquor cases during that period as his fees and costs, in
addition to his regular salary.
That officers acting in a judicial or quasi judicial capacity are disqualified by their interest in the
controversy to be decided is of course the general rule. Dimes v. Grand Junction Canal, 3 H. L. C. 759;
Gregory v. Railroad, 4 Ohio St. 675; Pearce v. Atwood, 13 Mass. 324; Taylor v. Commissioners, 105 Mass.
225; Kentish Artillery v. Gardiner, 15 R. I. 296, 3 A. 662; Moses v. Julian, 45 N. H. 52, 84 Am. Dec. 114;
State v. Crane, 36 N. J. Law, 394; Railroad Company v. Howard, 20 Mich. 18; Stockwell v. Township, 22
Mich. 341; Findley v. Smith, 42 W. Va. 299, 26 S. E. 370; Nettleton's Appeal, 28 Conn. 268; Cooley's
Constitutional Limitation (7th Ed.) p. 592 et seq. Nice questions, however, often arise as to what the
degree or nature of the interest must be. One is in respect to the effect of the membership of a judge in
a class of taxpayers or others to be affected by a principle of law, statutory or constitutional, to be
applied in a case between other parties and in which the judge has no other interest. Then the
circumstance that there is no judge not equally disqualified to act in such a case has been held to affect
the question. Wheeling v. Black, 25 W. Va. 266, 280; Peck v. Freeholders of Essex, 20 N. J. Law, 457;
Dimes v. Grand Junction Canal, 3 H. L. C. 759 (see Baron Parke's Answer for the Judges, pp. 785, 787);
Year Book, 8 Henry VI, 19; s. c. 2 Roll. Abridg. 93; Evans v. Gore, 253 U. S. 245, 247, 40 S. Ct. 550, 64 L.
Ed. 887, 11 A. L. R. 519; Stuart v. Mechanics' & Farmers' Bank, 19 Johns. (N. Y.) 496; Ranger v. Railroad, 5
H. L. C. 72. We are not embarrassed by such considerations here, for there were available in this case
other judicial officers who had no disqualification, either by reason of the character of their
compensation or their relation to the village government.

All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship,
personal bias, state policy, remoteness of interest would seem generally to be matters merely of
legislative discretion. Wheeling v. Black, 25 W. Va. 266, 270. But it certainly violates the Fourteenth
Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or
property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary
interest in reaching a conclusion against him in his case.

The mayor of the village of North College Hill, Ohio, has a direct personal pecuniary interest in convicting
the defendant who came before him for trial, in the $12 of costs imposed in his behalf, which he would
not have received if the defendant had been acquitted. This was not exceptional, but was the result of
the normal operation of the law and the ordinance. Counsel for the state do not deny this, but assert
the validity of the practice as an exception to the general rule. They rely upon the cases of Ownbey v.
Morgan, 256 U. S. 94, 41 S. Ct. 433, 65 L. Ed. 837, 17 A. L. R. 873; Murray's Lessee v. Hoboken Land &
Improvement Co., 18 How. 272, 276-280, 15 L. Ed. 372.

These cases show that in determining what due process of law is, under the Fifth or Fourteenth
Amendment, the court must look to those settled usages and modes of proceeding existing in the
common and statute law of England before the emigration of our ancestors, which were shown not to
have been unsuited to their civil and political condition by having been acted on by them after the
settlement of this country. Counsel contend that in Ohio and in other states, in the economy which it is
found necessary to maintain in the administration of justice in the inferior courts by justices of the
peace and by judicial officers of like jurisdiction, the only compensation which the state and county and
township can afford is the fees and costs earned by them, and that such compensation is so small that it
is not to be regarded as likely to influence improperly a judicial officer in the discharge of his duty, or as
prejudicing the defendant in securing justice. even though the magistrate will receive nothing if the
defendant is not convicted.

We have been referred to no cases at common law in England, prior to the separation of colonies from
the mother country, showing a practice that inferior judicial officers were dependant upon the
conviction of the defendant for receiving their compensation. Indeed, in analogous cases it is very clear
that the slightest pecuniary interest of any officer, judicial or quasi judicial, in the resolving of the
subject-matter which he was to decide, rendered the decision voidable. Bonham's Case, 8 Coke, 118a;
same case, 2 Brownlow & Goldesborough's Reports, 255; City of London v. Wood, 12 Modern Reports,
669, 687; Day v. Savage, Hobart, 85, 87; Hesketh v. Braddock, 3 Burrows, 1847, 1856, 1857, 1858.

As early as 12 Richard II, A. D. 1388, it was provided that there should be a commission of the justices of
the peace, with six justices in the county once a quarter, which might sit for three days, and that the
justices should receive four shillings a day 'as wages,' to be paid by the sheriffs out of a fund make up of
fines and amercements, and that that fund should be added to out of the fines and amercements from
the Courts of the Lords of the Franchises which were hundred courts allowed by the king by grant to
individuals.

It was required that the justices of the peace should be knights, esquires, or gentlemen of the land,
qualifications that were not modified until 1906. The wages paid were used 'to defray their common
diet,' and they soon became obsolete. Holdsworth's History of English Law, 288, 289. The wages paid
were not dependant on conviction of the defendant. They were paid at a time when the distinction
between torts and criminal cases was not clear. Holdworth, vol. 2, pp. 363, 365; Id. vol. 3, p. 328. And
they came from a fund which was created by fines and amercements collected from both sides in the
controversy. There was always a plaintiff, whether in the action for a tort or the prosecution for an
offense. In the latter he was called the prosecutor. If he failed to prove his case, whether civil or
criminal, he was subject to amercement pro falso clamore, while, if he succeeded, the defendant was in
misericordia. See Commonwealth v. Johnson, 5 Serg. & R. (Pa.) 195, 198; Musser v. Good, 11 Serg. & R.
(Pa.) 247. Thus in the outcome some one would be amerced in every case, and the amercements
generally went to the crown, and the fund was considerable. The statute of Richard II remained on the
statute book until 1855 when it was repealed by St. 18 and 19 Victoria. Meantime the hundred courts by
franchise had largely disappeared. The wages referred to were not part of the costs. The costs at
common law were the amounts paid either by the plaintiff or prosecutor or by the defendant for the
witnesses or services of the court officers. Burn's Justice, vol. 1, p. 628; Chitty's Criminal Law (4th Ed.
1841) vol. 1, p. 829. See, also, St. 14 George III, c. 20, 1774. For hundreds of years the justices of the
peace of England seem not to have received compensation for court work. Instead of that they were
required, upon entering upon the office, to pay certain fees. Holdsworth, vol. 1, p. 289; 19 Halsbury's
Laws of England, § 1152. Local judges in towns are paid salaries.

There was at the common law the greatest sensitiveness over the existence of any pecuniary interest
however small or infinitesimal in the justices of the peace. In Hawkins, 2 Pleas of the Crown, Bk. 2, ch. 8,
§§ 68, 69 we find the following:
'The general rule of law certainly is that justices of the peace ought not to execute their office in their
own case (citing 1 Salk. 396); and even in cases where such proceeding seems indispensably necessary,
as in being publicly assaulted or personally abused, or their authority otherwise contemned while in the
execution of their duty, yet if another justice be present, his assistance should be required to punish the
offender (Stra. 240).

'And by the common law, if an order of removal were made by two justices, and one of them was an
inhabitant of the parish from which the pauper was removed, such order was illegal and bad, on the
ground that the justice who was an inhabitant, was interested, as being liable to the poor's rate. Rex v.
Great Chart, Burr. S. C. 194, Stra. 1173.'

And this strict principle, unless there is relief by the statute, is seen in modern cases. Queen v. Recorder
of Cambridge, 8 Ellis & Blackburn, 637; Regina v. Hammond, 9 Law Times Reports (N. S.) 423; The Queen
v. Rand, Law Reports, 1 Queen's Bench, 230; Queen v. Gaisford (1892) 1 Queen's Bench Division, 381; 19
Halsbury's Laws of England, 1156.

There was then no usage at common law by which justices of the peace or inferior judicial officers were
paid fees on condition that they convicted the defendants, and such a practice certainly cannot find
support as due process of law in English precedent. It may be that the principle as stated in Blackstone,
book 3, p. 400, that the king shall neither pay nor receive costs, because it is the king's prerogative not
to pay them to a subject and is beneath his dignity to receive them, was misunderstood and led, as
suggested by Mr. Lewis in his edition of Blackstone (see Lewis' Blackstone, note No. 60, vol. III, p. 400) to
the practice in some states in minor cases of allowing inferior judges no compensation, except by fees
collected of the convicted defendant, but, whether it did or not, the principle relied on did not support
the practice. That practice has prevailed and still prevails in Arkansas, Kentucky, Nebraska, North
Carolina, Georgia, Ohio, and Texas, and it seems at one time to have obtained in Indiana, Oregon,
Illinois, and Alabama.

In two of these states only has the question been considered by their courts, and it has been held that
provision for payment to the judge of fees only in case of conviction does not disqualify him. Those are
Bennett v. State, 4 Tex. App. 72; Wellmaker v. Terrell, 3 Ga. App. 791, 60 S. E. 464. There is no discussion
in either of the question of due process of law. The existence of a statute authorizing the practice seems
to have been the controlling consideration. Two other cases are cited. In Ex parte Guerrero, 69 Cal. 88,
10 P. 261, the judge was paid a regular salary fixed by law. The fund out of which this was paid was
increased by fees and fines collected in his court, but there is no evidence that payment of his salary was
dependent on the amount of his collections or convictions. In Herbert v. Baltimore County, 97 Md. 639,
55 A. 376, the action was by a justice of the peace against a county for services in criminal cases. A new
law limited him to $10 a month. The statement of the case does not distinctly show that in convictions
he would have had a larger compensation from his costs collected out of the defendant, but this may be
assumed from the argument. His contention was that the new law was invalid, because it did not give
the defendants before him due process. The court held against him, chiefly on the ground that he must
be satisfied with the compensation the law afforded him. Responding to his argument that the new law
was invalid, because justice would be induced to convict when in justice they should acquit, the court
said:

'We cannot recognize the force of this suggestion, founded as it is upon the assumption that the justices
will violate their oaths and the duties of their office, and not upon anything that the law authorizes to be
done.'

So far as the case goes, it is an authority for the contention of the state, but the issue thus raised was
not considered at length, and was not one which in such an action the court would be patient to hear
pressed by the justice, whose constitutional rights were not affected. Tyler v. Court, 179 U. S. 405,
409, 21 S. Ct. 206, 45 L. Ed. 252; California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306,
318, 26 S. Ct. 100, 50 L. Ed. 204.

In the case of Probasco v. Raine, Auditor, 50 Ohio St. 378, 34 N. E. 536, the question arose whether the
fee of 4 per cent. payable to county auditors for placing omitted property on the duplicate list for
taxation, which required investigation and quasi judicial consideration, was invalid. The court held that it
was not, and that the objection urged there could not be based on the argument that a man could not
be a judge in his own case; that the auditor had no case to be adjudged, but that, on the contrary, he
was the taxing officer, before whom other parties were cited to appear and show cause why they should
not bear their equal burden of taxation. The court said that the action of the auditor was not final, so as
to cut off further inquiry, but that the whole case might be gone into anew by proper proceedings in
court. An exactly opposite conclusion was reached by the United States Circuit Court for the Northern
District of Ohio in Meyers v. Shields, 61 F. 713, 725, et seq.

In other states than those above mentioned the minor courts are paid for their services by the state or
county, regardless of acquittal or conviction, except that in Virginia the minor courts receive one-half of
the usual fees where there is acquittal. Four states have put into their Constitutions a provision that the
state must pay the costs in such cases in case of acquittal. They are California, Florida, Louisiana, and
South Carolina.

The strict common-law rule was adopted in this country as one to be enforced where nothing but the
common law controlled, and citizens and taxpayers have been held incompetent to sit in suits against
the municipal corporation of which they have been residents. Diveny v. Elmira, 51 N. Y. 506; Corwein v.
Hames, 11 Johns. (N. Y.) 76; Clark v. Lamb, 2 Allen (Mass.) 396; Dively v. Cedar Falls, 21 Iowa, 565;
Fulweiler v. Louis, 61 Mo. 479; Petition of New Boston, 49 N. H. 328; Commonwealth v. McLane, 4 Gray
(Mass.) 427; Fine v. St. Louis Public Schools, 30 Mo. 166, 173. With other courts, however, and with the
Legislatures, the strict rule seemed to be inconvenient, impracticable, and unnecessary, and the view
was taken that such remote or minute interest in the litigation might be declared by the Legislature not
to be a reason for disqualification of a judge or juror.

A case, much cited, in which this conclusion was reached, and in which the old English corporation cases
were considered, was that of City Council v. Pepper, 1 Rich. (S. C.) 364. The recorder of the city of
Charleston sentenced a nonresident of the city for violation of a city ordinance requiring him to take out
a license for what he did, or to pay a fine not exceeding $20. The contention was that the defendant was
a noncorporator and nonresident, and not subject to the jurisdiction of the city court; that the recorder
was a corporator and interested in the penalty, and therefore was not competent to try the cause. The
court said (page 366) in respect to Hesketh v. Braddock, 3 Burr. 1847, supra:

'It will be remarked that that case depends altogether upon the common law, and if the city court
depended upon the same for its jurisdiction, the objection might be fatal. But the establishment and
jurisdiction of the city court commences with the act of 1801. * * * By that act it is clothed with the
power of trying all offences against the by-laws of the city, and for that purpose is given concurrent
jurisdiction with the Court of Sessions. This grant of power is from all the people of the state, through
their Legislature, and surely they have the power to dispense with the common-law objection, that the
corporators were interested, and ought not to be intrusted with the enforcement of their laws against
others. The authority given to the city court to try all offenders against the city ordinances, impliedly
declares, that notwithstanding the common-law objection, it was right had proper to give it the power
to enforce the city laws against all offenders. That there was great reason in this cannot be doubted,
when it is remembered that the interest of the corporators is so minute as not to be even thought of, by
sheriff, juror or judge. It is very much like the interest which similar officers would feel in enforcing a
state law, the sanction of which was a penalty. The sum thus to be recovered goes in exoneration of
some part of the burden of government to which every citizen is subjected; but such an interest has no
effect upon the mind. It is too slight to excite prejudice against a defendant. The same thing is the case
here. For the judge, sheriff and jurors, are members of a corporation of many thousand members. What
interest, of value, have they in a fine of $20? It would put a most eminent calculator to great trouble to
ascertain the very minute grain of interest which each of these gentlemen might have. To remove so
shadowy and slight an objection, the Legislature thought proper to clothe the city court, consisting of its
judge, clerk, sheriff and jurors, with authority to try the defendant, and he cannot now object to it.'

And the same view is taken in Commonwealth v. Ryan, 5 Mass. 90; Commonwealth v. Reed, 1 Gray
(Mass.) 472, 475; Thomas v. Mt. Vernon, 9 Ohio, 290; Commissioners v. Lytle, 3 Ohio, 289; Wheeling v.
Black, 25 W. Va. 266, 280; Board of Justices v. Fennimore, 1 N. J. Law, 190; Foreman v. Marianna, 43 Ark.
324; Cartersville v. Lyon, 69 Ga. 577; Omaha v. Olmstead, 5 Neb. 446; Hill v. Wells, 6 Pick. (Mass.) 104;
Commonwealth v. Emery, 11 Cush. (Mass.) 406; Bennett v. State, 4 Tex. App. 72; Welmaker v. Terrell, 3
Ga. App. 791, 60 S. E. 464; State v. Craig, 80 Me. 85, 13 A. 129.

Mr. Justice Cooley, in his work on Constitutional Limitations (7th edition, page 594), points out that the
real ground of the ruling in these cases is that:

'Interest is so remote, trifling, and insignificant that it may fairly be supposed to be incapable of affecting
the judgment of or of influencing the conduct of an individual. And where penalties are imposed, to be
recovered only in a municipal court, the judge or jurors in which would be interested as corporators in
the recovery, the law providing for such recovery must be regarded as precluding the objection of
interest.'

But the learned judge then proceeds:

'But, except in cases resting upon such reasons, we do not see how the Legislature can have any power
to abolish a maxim which is among the fundamentals of judicial authority.'

Referring, then, to a remark in the case of the Matter of Leefe, 2 Barb. Ch. (N. Y.) 39, that the people of
the state, when framing their Constitution, might possibly establish so great an anomaly, if they saw fit,
the learned author says:

'Even this must be deemed doubtful, since the adoption of the fourteenth article of the Amendments to
the federal Constitution, which denies to the state the right to deprive one of life, liberty, or property,
without due process of law.'

From this review we conclude that a system by which an inferior judge is paid for his service only when
he convicts the defendant has not become so embedded by custom in the general practice, either at
common law or in this country, that it can be regarded as due process of law, unless the costs usually
imposed are so small that they may be properly ignored as within the maxim 'de minimis non curat lex.'

The mayor received for his fees and costs in the present case $12, and from such costs under the
Prohibition Act for seven months he made about $100 a month, in addition to his salary. We cannot
regard the prospect of receipt or loss of such an emolument in each case as a minute, remote, trifling, or
insignificant interest. It is certainly not fair to each defendant brought before the mayor for the careful
and judicial consideration of his guilt or innocence that the prospect of such a prospective loss by the
mayor should weigh against his aquittal.

These are not cases in which the penalties and the costs are negligible. The field of jurisdiction is not
that of a small community, engaged in enforcing its own local regulations. The court is a state agency,
imposing substantial punishment, and the cases to be considered are gathered from the whole county
by the energy of the village marshals and detectives regularly employed by the village for the purpose. It
is not to be treated as a mere village tribunal for village peccadilloes. There are doubtless mayors who
would not allow such a consideration as $12 costs in each case to affect their judgment in it, but the
requirement of due process of law in judicial procedure is not satisfied by the argument that men of the
highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every
procedure which would offer a possible temptation to the average man as a judge to forget the burden
of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear,
and true between the state and the accused denies the latter due process of law.

But the pecuniary interest of the mayor in the result of his judgment is not the only reason for holding
that due process of law is denied to the defendant here. The statutes were drawn to stimulate small
municipalities, in the country part of counties in which there are large cities, to organize and maintain
courts to try persons accused of violations of the Prohibition Act everywhere in the county. The
inducement is offered of dividing between the state and the village the large fines provided by the law
for its violations. The trial is to be had before a mayor without a jury, without opportunity for retrial, and
with a review confined to questions of law presented by a bill of exceptions, with no opportunity by the
reviewing court to set aside the judgment on the weighing of evidence, unless it should appear to be so
manifestly against the evidence as to indicate mistake, bias, or willful disregard of duty by the trial court.
It specifically authorizes the village to employ detectives, deputy marshals, and other assistants to
detect crime of this kind all over the county, and to bring offenders before the mayor's court, and it
offers to the village council and its officers a means of substantially adding to the income of the village
to relieve it from further taxation. The mayor is the chief executive of the village. He supervises all the
other executive officers. He is charged with the business of looking after the finances of the village. It
appears from the evidence in this case, and would be plain if the evidence did not show it, that the law
is calculated to awaken the interest of all those in the village charged with the responsibility of raising
the public money and expending it, in the pecuniarily successful conduct of such a court. The mayor
represents the village and cannot escape his representative capacity. On the other hand, he is given the
judicial duty, first, of determining whether the defendant is guilty at all; and, second, having found his
guilt, to measure his punishment between $100 as a minimum and $1,000 as a maximum for first
offenses, and $300 as a minimum and $2,000 as a maximum for second offenses. With his interest as
mayor in the financial condition of the village and his responsibility therefor, might not a defendant with
reason say that he feared he could not get a fair trial or a fair sentence from one who would have so
strong a motive to help his village by conviction and a heavy fine? The old English cases cited above in
the days of Coke and Holt and Mansfield are not nearly so strong. A situation in which an official
perforce occupies two practically and seriously inconsistent positions, one partisan and the other
judicial, necessarily involves a lack of due process of law in the trial of defendants charged with crimes
before him. City of Boston v. Baldwin, 139 Mass. 315, 1 N. E. 417; Florida ex rel. Colcord v. Young, 31 Fla.
594, 12 So. 673, 19 L. R. A. 636, 34 Am. St. Rep. 41. It is, of course, so common to vest the mayor of
villages with inferior judicial functions that the mere union of the executive power and the judicial
power in him cannot be said to violate due process of law. The minor penalties usually attaching to the
ordinances of a village council, or to the misdemeanors in which the mayor may pronounce final
judgment without a jury, do not involve any such addition to the revenue of the village as to justify the
fear that the mayor would be influenced in his judicial judgment by that fact. The difference between
such a case and the plan and operation of the statutes before us is so plain as not to call for further
elaboration.

Counsel for the state argue that it has been decided by this court that the Legislature of a state may
provide such system of courts as it chooses, that there is nothing in the Fourteenth Amendment that
requires a jury trial for any offender, that it may give such territorial jurisdiction to its courts as it sees
fit, and therefore that there is nothing sinister or constitutionally invalid in giving to a village mayor the
jurisdiction of a justice of the peace to try misdemeanors committed anywhere in the county, even
though the mayor presides over a village of 1,100 people and exercises jurisdiction over offenses
committed in a county of 500,000. This is true and is established by the decisions of this court in
Missouri v. Lewis, 101 U. S. 22, 30, 25 L. Ed. 989; In re Claasen, 140 U. S. 200, 11 S. Ct. 735, 35 L. Ed. 409.
See, also, Carey v. State, 70 Ohio St. 121, 70 N. E. 955. It is also correctly pointed out that it is completely
within the power of the Legislature to dispose of the fines collected in criminal cases as it will, and it
may therefore divide the fines as it does here, one-half of the state and one-half to the village by whose
mayor they are imposed and collected. It is further said with truth that the Legislature of a state may
and often ought to stimulate prosecutions for crime by offering to those who shall initiate and carry on
such prosecutions rewards for thus acting in the interest of the state and the people. The Legislature
may offer rewards or a percentage of the recovery to informers. United States v. Murphy & Morgan, 16
Pet. 203, 10 L. Ed. 937. It may authorize the employment of detectives. But these principles do not at all
affect the question whether the state, by the operation of the statutes we have considered, has not
vested the judicial power in on who by reason of his interest, both as an individual and as chief
executive of the village, is disqualified to exercise it in the trial of the defendant.

It is finally argued that the evidence shows clearly that the defendant was guilty and that he was only
fined $100 which was the minimum amount, and therefore that he cannot complain of a lack of due
process, either in his conviction or in the amount of the judgment. The plea was not guilty and he was
convicted. No matter what the evidence was against him, he had the right to have an impartial judge. He
seasonably raised the objection, and was entitled to halt the trial because of the disqualification of the
judge, which existed both because of his direct pecuniary interest in the outcome, and because of his
official motive to convict and to graduate the fine to help the financial needs of the village. There were
thus presented at the outset both features of the disqualification.

The judgment of the Supreme Court of Ohio must be reversed, and the cause remanded for further
proceedings not inconsistent with this opinion.

Judgment reversed.

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Ichong vs Hernandez

Facts:

Chinese businessman, Lao Ichong, entered the country to take advantage of business opportunities
herein abound. His type of business particularly is a retail business. He and his fellow Chinese
businessmen enjoyed a “monopoly” in the local market in Pasay. But in June 1954, Congress passed the
Republic Act No. 1180 or the Retail Trade Nationalization Act. This act is to reserve to Filipinos the right
to engage in the retail business.

Ichong then petitioned for the nullification of the said Act on the ground that it contravened several
treaties concluded by the Philippines. He said it violates the equal protection clause (pacta sund
servanda) and, as a Chinese businessman engaged in the business here in the country who helps in the
income generation of the country, he should be given equal opportunity.

ISSUE:

Whether or Not Republic Act No. 1180 violates equal protection clause.

HELD:
No. The mere fact of alienage is the root and cause of the distinction between the alien and the national
as a trader.

The alien resident owes allegiance to the country of his birth or his adopted country; his stay here is for
personal convenience; he is attracted by the lure of gain and profit. He is naturally lacking in that spirit
of loyalty and enthusiasm for this country where he temporarily stays and makes his living, or of that
spirit of regard, sympathy and consideration for his Filipino customers as would prevent him from taking
advantage of their weakness and exploiting them.

Another objection to the alien retailer in this country is that he never really makes a genuine
contribution to national income and wealth. The alien's interest in this country being merely transient
and temporary, it would indeed be ill-advised to continue entrusting the very important function of
retail distribution to his hands.

The practices resorted to by aliens in the control of distribution show the existence of real and actual,
positive and fundamental differences between an alien and a national which fully justify the legislative
classification adopted in the retail trade measure

Difference in alien aims and purposes sufficient basis for distinction.

The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual
and real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens.
Some may disagree with the wisdom of the legislature's classification. To this we answer, that this is the
prerogative of the law-making power. Since the Court finds that the classification is actual, real and
reasonable, and all persons of one class are treated alike, and as it cannot be said that the classification
is patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within
its legitimate prerogative and it can not declare that the act transcends the limit of equal protection
established by the Constitution.

Broadly speaking, the power of the legislature to make distinctions and classifications among persons is
not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a
wide scope of discretion, and a law can be violative of the constitutional limitation only when the
classification is without reasonable basis

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Lao Ichong vs Jaime Hernandez

on November 22, 2010

Constitutional Law – Treaties May Be Superseded by Municipal Laws in the Exercise of Police Power

Lao Ichong is a Chinese businessman who entered the country to take advantage of business
opportunities herein abound (then) – particularly in the retail business. For some time he and his fellow
Chinese businessmen enjoyed a “monopoly” in the local market in Pasay. Until in June 1954 when
Congress passed the RA 1180 or the Retail Trade Nationalization Act the purpose of which is to reserve
to Filipinos the right to engage in the retail business. Ichong then petitioned for the nullification of the
said Act on the ground that it contravened several treaties concluded by the RP which, according to him,
violates the equal protection clause (pacta sund servanda). He said that as a Chinese businessman
engaged in the business here in the country who helps in the income generation of the country he
should be given equal opportunity.

ISSUE: Whether or not a law may invalidate or supersede treaties or generally accepted principles.

HELD: Yes, a law may supersede a treaty or a generally accepted principle. In this case, there is no
conflict at all between the raised generally accepted principle and with RA 1180. The equal protection of
the law clause “does not demand absolute equality amongst residents; it merely requires that all
persons shall be treated alike, under like circumstances and conditions both as to privileges conferred
and liabilities enforced”; and, that the equal protection clause “is not infringed by legislation which
applies only to those persons falling within a specified class, if it applies alike to all persons within such
class, and reasonable grounds exist for making a distinction between those who fall within such class
and those who do not.”

For the sake of argument, even if it would be assumed that a treaty would be in conflict with a statute
then the statute must be upheld because it represented an exercise of the police power which, being
inherent could not be bargained away or surrendered through the medium of a treaty. Hence,
Ichong can no longer assert his right to operate his market stalls in the Pasay city market.

Read full text

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Tagged with: case brief • case digest • Exercise of Police Power • G.R. No. L-7995 • ichong vs
hernandez • Jurisprudence • lao ichong vs hernandez • Lao Ichong vs Jaime Hernandez • Municipal
Laws • Police Power • Treaties • Treaties May Be Superseded by Municipal Laws in the Exercise of Police
Power • treaty

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REYES V CA

7NOV

G.R. No. 96492 | November 26, 1992 | J. Nocon

Facts:

Petitioners Romeo Reyes, Angel Parayao and Emilio Mananghaya question the respondent Court’s
decision, which affirmed with modification the agrarian court’s decision, which ordered them and the
other defendants therein to, among others, restore possession of the disputed landholding to private
respondent, Eufrocina Vda. dela Cruz.

Juan Mendoza, father of defendant Olympio, is the owner of farm lots in Bahay Pare, Candaba,
Pampanga. Devoted to the production of palay, the lots were tenanted and cultivated by now deceased
Julian dela Cruz, husband of plaintiff Eufrocina dela Cruz.

Eufrocina alleged that her husband’s death, she succeeded him as bona fidetenant of the subject lots;
that Olympio, in conspiracy with the other defendants, prevented her daughter Violeta and her workers
through force, intimidation, strategy and stealth, from entering and working on the subject premises;
and that until the filing of the instant case, defendants had refused to vacate and surrender the lots,
thus violating her tenancy rights. Plaintiff therefore prayed for judgment for the recovery of possession
and damages with a writ of preliminary mandatory injunction in the meantime.
Defendant barangay officials denied interference in the tenancy relationship existing between plaintiff
and defendant Mendoza, particularly in the cultivation of the latter’s farm lots and asked for the
dismissal of the case, moral damages and attorney’s fees.

Mendoza raised abandonment, sublease and mortgage of the farm lots without his consent and
approval, and non-payment of rentals, irrigation fees and other taxes due the government, as his
defenses.

Petitioners now bring the present Petition for Review on Certiorari.

Issue:
W/N the court erred in holding petitioners liable

Held:

No. The evidence presented before the trial court and CA served as basis in arriving at their findings of
fact. The Supreme Court will not analyze such evidence all over again because settled is the rule that
only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of
Court absent the exceptions which do not obtain in the instant case.

In agrarian cases, the quantum of evidence is no more than substantial evidence. Substantial evidence
does not necessarily import preponderant evidence, as is required in an ordinarily civil case. It has been
defined to be such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion and its absence is not shown by stressing that there is contrary evidence on record, direct or
circumstantial, for the appellate court cannot substitute its own judgment or criteria for that of the trial
court in determining wherein lies the weight of evidence or what evidence is entitled to belief.

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Evelio Javier vs COMELEC & Arturo Pacificador

on November 23, 2010

Due Process – impartial and competent court

Javier and Pacificador, a member of the KBL under Marcos, were rivals to be members of the Batasan in
May 1984 in Antique. During election, Javier complained of ”massive terrorism, intimidation, duress,
vote-buying, fraud, tampering and falsification of election returns under duress, threat and intimidation,
snatching of ballot boxes perpetrated by the armed men of Pacificador.” COMELEC just referred the
complaints to the AFP. On the same complaint, the 2nd Division of the Commission on Elections directed
the provincial board of canvassers of Antique to proceed with the canvass but to suspend the
proclamation of the winning candidate until further orders. On June 7, 1984, the same 2nd Division
ordered the board to immediately convene and to proclaim the winner without prejudice to the
outcome of the case before the Commission. On certiorari before the SC, the proclamation made by the
board of canvassers was set aside as premature, having been made before the lapse of the 5-day period
of appeal, which the Javier had seasonably made. Javier pointed out that the irregularities of the
election must first be resolved before proclaiming a winner. Further, Opinion, one of the Commissioners
should inhibit himself as he was a former law partner of Pacificador. Also, the proclamation was made
by only the 2nd Division but the Constitute requires that it be proclaimed by the COMELEC en banc. In
Feb 1986, during pendency, Javier was gunned down. The Solicitor General then moved to have the
petition close it being moot and academic by virtue of Javier’s death.

ISSUE: Whether or not there had been due process in the proclamation of Pacificador.

HELD: The SC ruled in favor of Javier and has overruled the Sol-Gen’s tenor. The SC has repeatedly and
consistently demanded “the cold neutrality of an impartial judge” as the indispensable imperative of
due process. To bolster that requirement, we have held that the judge must not only be impartial but
must also appear to be impartial as an added assurance to the parties that his decision will be just. The
litigants are entitled to no less than that. They should be sure that when their rights are violated they
can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to
him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without
such confidence, there would be no point in invoking his action for the justice they expect.
Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter
calls the rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where a
suitor approaches a court already committed to the other party and with a judgment already made and
waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing.
Judicial (and also extrajudicial) proceedings are not orchestrated plays in which the parties are supposed
to make the motions and reach the denouement according to a prepared script. There is no writer to
foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the
arguments are filed, on the basis of the established facts and the pertinent law.

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Tagged with: case brief • case digest • competent court • consti • constitutional law • due
process • Evelio Javier vs COMELEC & Arturo Pacificador • G.R. Nos. L-68379 • G.R. Nos. L-68379-
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pacificador • Jurisprudence • political law • scra

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ayeLaxing

"Creativity is allowing yourself to make mistakes. Art is knowing which one to keep." - Scott Adams

MONDAY, JUNE 25, 2012

TAÑADA vs TUVERA Case Digest

Persons and Family Relation G.R. No. L-63915 :

Facts: Invoking the people's right to be informed on matters of public concern as well as the principle
that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish,
and/or cause the publication in the Official Gazette of various presidential decrees, letters of
instructions, general orders, proclamations, executive orders, letter of implementation and
administrative orders. The respondents, through the Solicitor General, would have this case dismissed
outright on the ground that petitioners have no legal personality or standing to bring the instant
petition, absence of any showing that petitioners are personally and directly affected or prejudiced by
the alleged non-publication of the presidential issuances in question said petitioners are without the
requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved
parties." Petitioners maintain that since the subject of the petition concerns a public right and its object
is to compel the performance of a public duty, they need not show any specific interest for their petition
to be given due course. Respondents further contend that publication in the Official Gazette is not a sine
qua non requirement for the effectivity of laws where the laws themselves provide for their own
effectivity dates. It is thus submitted that since the presidential issuances in question contain special
provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable
for their effectivity.

Issues: Whether the petitioners have legal personality to bring the instant petition?

Whether publication is needed to make the law effective?

Held: Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less
than the fundamental law of the land. Court has ruled that publication in the Official Gazette is
necessary in those cases where the legislation itself does not provide for its effectivity date-for then the
date of publication is material for determining its date of effectivity, which is the fifteenth day following
its publication-but not when the law itself provides for the date when it goes into effect. Considered in
the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said
Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself
provides for the date of its effectivity. Without such notice and publication, there would be no basis for
the application of the maxim "ignorantia legis non excusat." That duty must be enforced if the
Constitutional right of the people to be informed on matters of public concern is to be given substance
and reality. The law itself makes a list of what should be published in the Official Gazette. The
publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by
law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or
otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category.
Other presidential issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the assumption that they have been
circularized to all concerned.
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CASE DIGEST ON TAÑADA v. TUVERA [136 SCRA 27 (1985)]

November 10, 2010

Nature: Petition to review the decision of the Executive Assistant to the President.

Facts: Invoking the people’s right to be informed on matters of public concern, a right recognized in
Section 6, Article IV of the 1973 constitution, petitioners seek a writ of mandamus to compel respondent
public officials to publish, and/or cause the publication in the Official Gazette, of various presidential
decrees, letters of instructions, general orders, proclamations, executive orders, letter of
implementation and administrative orders. The respondents would have this case dismissed on the
ground that petitioners have no legal personality to bring this petition. Petitioners maintain that since
the subject of the petition concerns a public right and its object is to compel public duty, they need not
show any specific interest. Respondents further contend that publication in the OG is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates.
Issue: WON publication in the Official Gazatte is an indispensable requirement for the effectivity of the
PDs, LOIs, general orders, EOs, etc. where laws themselves provide for their own effectivity dates.

Held: Yes. It is the people’s right to be informed on matters of public concern & corollarily access to
official records, & to documents & papers pertaining to official acts, transactions, or decisions, shall be
afforded the citizens subject to such limitation as may be provided by law (§6 AIV, 1973 Constitution).
Laws, to be valid & enforceable, must be published in the OG or otherwise effectively promulgated. The
fact that a PD or LOI states its date of effectivity does not preclude their publication in the OG as they
constitute important legislative acts. The publication of presidential issuances “of public nature” or “of
general applicability” is a requirement of due process. Before a person may be bound by law, he must
first be officially informed of its contents.

Judgment: Respondents ordered to publish in Official Gazette all unpublished presidential issuances of
general application, and unless so published shall have no binding force and effect.

Impt Point: It illustrates how decrees & issuances issued by one man—Marcos—are in fact laws of gen’l
application & provide for penalties. The constitution afforded Marcos both executive & legislative
powers.

The generality of law (CC A14) will never work w/o constructive notice. The ruling of this case provides
the publication constitutes the necessary constructive notice & is thus the cure for ignorance as an
excuse.

Ignorance will not even mitigate the crime.

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Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 163935 February 2, 2006

NATIONAL ASSOCIATION OF ELECTRICITY CONSUMERS FOR REFORMS (NASECORE),

represented by PETRONILO ILAGAN, FEDERATION OF VILLAGE ASSOCIATIONS (FOVA),
represented by SIEGFRIEDO VELOSO, and FEDERATION OF LAS PIÑAS HOMEOWNERS
ASSOCIATIONS (FOLPHA), represented by BONIFACIO DAZO, Petitioners,
vs.
ENERGY REGULATORY COMMISSION (ERC) and MANILA ELECTRIC and COMPANY
(MERALCO)Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for certiorari, prohibition and injunction filed by National
Association of Electricity Consumers for Reforms (NASECORE), Federation of Village
Associations (FOVA) and Federation of Las Piñas Homeowners Associations
(FOLPHA),1 seeking to nullify the Order dated June 2, 2004 of the Energy Regulation
Commission (ERC) in ERC Case No. 2004-112. The assailed order approved the increase of
respondent Manila Electric Company’s (MERALCO’s) generation charge from P3.1886 per
kilowatthour (kWh) to P3.3213 per kWh effective immediately.

Factual and Procedural Antecedents

Congress enacted Republic Act (RA) No. 9136, known as the Electric Power Industry
Reform Act of 2001 (EPIRA) on June 8, 2001. Among others, EPIRA declares as policy of the
State the following:

(b) To ensure the quality, reliability, security and affordability of the supply of electric
power;

(c) To ensure transparent and reasonable prices of electricity in a regime of free and fair
competition and full public accountability to achieve greater operational and economic
efficiency and enhance the competitiveness of Philippine products in the global market;

(d) To enhance the inflow of private capital and broaden the ownership base of the power
generation, transmission and distribution sectors;

(e) To ensure fair and non-discriminatory treatment of public and private sector entities in
the process of restructuring the electric power industry;

(j) To establish a strong and purely independent regulatory body and system to ensure
consumer protection and enhance the competitive operation of the electricity market; …2

The ERC was created under the EPIRA.3 The said regulatory body superseded the Energy
Regulatory Board (ERB) which was created under Executive Order (EO) No. 172, as
amended.4 The ERC is tasked to promote competition, encourage market development,
ensure customer choice and penalize abuse of market power in the restructured electricity
industry.5 Towards this end, the ERC is granted, inter alia, the following functions:

(a) Enforce the implementing rules and regulations of this Act;

(b) Within six (6) months from the effectivity of this Act, promulgate and enforce, in
accordance with law, a National Grid Code and a Distribution Code which shall include, but
not limited to, the following:

(c) Enforce the rules and regulations governing the operations of the electricity spot
market and the activities of the spot market operator and other participants in the spot
market, for the purpose of ensuring a greater supply and rational pricing of electricity;

(d) Determine the level of cross subsidies in the existing retail rate until the same is
removed pursuant to Section 74 hereof;

(e) Amend or revoke, after due notice and hearing, the authority to operate of any person
or entity which fails to comply with the provisions hereof, the IRR or any order or
resolution of the ERC. In the event that a divestment is required, the ERC shall allow the
affected party sufficient time to remedy the infraction or for an orderly disposal, but in no
case exceed twelve (12) months from the issuance of the order;

(f) In the public interest, establish and enforce a methodology for setting transmission and
distribution wheeling rates and retail rates for the captive market of a distribution utility,
taking into account all relevant considerations, including the efficiency or inefficiency of
the regulated entities. The rates must be such as to allow the recovery of just and
reasonable costs and a reasonable return on rate base (RORB) to enable the entity to
operate viably. The ERC may adopt alternative forms of internationally-accepted rate-
setting methodology as it may deem appropriate. The rate-setting methodology so
adopted and applied must ensure a reasonable price of electricity. The rates prescribed
shall be non-discriminatory. To achieve this objective and to ensure the complete removal
of cross subsidies, the cap on the recoverable rate of system losses prescribed in Section
10 of Republic Act No. 7832, is hereby amended and shall be replaced by caps which shall
be determined by the ERC based on load density, sales mix, cost of service, delivery
voltage and other technical considerations it may promulgate. The ERC shall determine
such form of rate-setting methodology, which shall promote efficiency. In case the rate-
setting methodology used is RORB, it shall be subject to the following guidelines:

(u) The ERC shall have the original and exclusive jurisdiction over all cases contesting rates,
fees, fines and penalties imposed by the ERC in the exercise of the abovementioned
powers, functions and responsibilities and over all cases involving disputes between and
among participants or players in the energy sector.

All notices of hearings to be conducted by the ERC for the purpose of fixing rates or fees
shall be published at least twice for two successive weeks in two (2) newspapers of
nationwide circulation.6

Section 36 of the EPIRA required every distribution utility to file its revised rates for the
approval of the ERC. The said provision reads:

Sec. 36. Unbundling of Rates and Functions. – Within six (6) months from the effectivity of
this Act, NPC [National Power Corporation] shall file with the ERC its revised rates. The
rates of NPC shall be unbundled between transmission and generation rates and the rates
shall reflect the respective costs of providing each service. Inter-grid and intra-grid cross
subsidies for both the transmission and the generation rates shall be removed in
accordance with this Act.

Within six (6) months from the effectivity of this Act, each distribution utility shall file its
revised rates for the approval by the ERC. The distribution wheeling charge shall be
unbundled from the retail rate and the rates shall reflect the respective costs of providing
each service. For both the distribution retail wheeling and supplier’s charges, inter-class
subsidies shall be removed in accordance with this Act.

Within six (6) months from the date of submission of revised rates by NPC and each
distribution utility, the ERC shall notify the entities of their approval.

Any electric power industry participant shall functionally and structurally unbundle its
business activities and rates in accordance with the sectors as identified in Section 5
hereof. The ERC shall ensure full compliance with this provision.
On October 30, 2001, pursuant to the above provision, the ERC issued an Order requiring
all distribution utilities to file their application for unbundled rates. In compliance
therewith, respondent MERALCO filed on December 26, 2001 its application with the ERC
for the approval of its unbundled rates and appraisal of its properties. The case was
docketed as ERC Case No. 2001-9007 and consolidated with ERC Case No. 2001-646.8

Acting thereon, the ERC issued an Order and a Notice of Public Hearing both dated
February 1, 2002 setting the case for initial hearing on March 11 and 12, 2002. In the same
order, MERALCO was directed to cause the publication of the notice of public hearing at its
own expense twice for two successive weeks in two newspapers of nationwide circulation,
the last date of publication to be made not later than two weeks before the scheduled
date of initial hearing.

The Office of the Solicitor General (OSG), the Commission on Audit and the Committees on
Energy of both Houses of Congress were furnished with copies of the order and the notice
of public hearing and were requested to have their respective duly authorized
representatives present at the said hearing. Likewise, the Offices of the Municipal/City
Mayors within MERALCO’s franchise area were furnished with copies of the order and the
notice of public hearing for the appropriate posting thereof on their respective bulletin
boards.

At the initial hearing, representatives of MERALCO were present. Also at the said hearing
were a representative from the OSG for the public and oppositors to the application
including Mr. Pete Ilagan, representing herein petitioner NASECORE.

After a series of hearings, the ERC rendered the Decision dated March 20, 2003, approving
MERALCO’s unbundled schedule of rates effective on the next billing cycle. However, in
the same decision, the ERC directed MERALCO, among others:

a) To discontinue charging the PPA [Purchased Power Adjustment] upon effectivity of the
approved unbundled rates; any change in the cost of power purchased shall be reflected as
deferred charges or credits which shall be recovered through the Generation Rate
Adjustment Mechanism (GRAM) approved by the Commission for implementation per ERC
Order effective February 24, 2003;9

In other words, MERALCO was directed to recover the costs of power purchased from the
National Power Corporation (NAPOCOR) through a new adjustment mechanism called the
Generation Rate Adjustment Mechanism (GRAM). Prior thereto, the said costs were
recovered through the Purchased Power Adjustment (PPA) mechanism.

It appears that in another proceeding, ERC Case No. 2003-44,10 the ERC issued an Order
dated January 29, 2003 setting for public consultation on February 17, 2003 its proposed
Implementing Rules for the Recovery of Deferred Fuel and Independent Power Producers
Costs (DÉCOR) and Deferred Incremental Currency Exchange Recovery (DICER). The
proposed DÉCOR and DICER were formulated by the ERC to replace the PPA and the
Currency Exchange Rate Adjustment (CERA), the automatic adjustment mechanisms then
in effect, on its view that they (PPA and CERA) did not meet the goal of balancing the need
for timely recoveries of costs by the utilities with the ERC’s need to review the
reasonableness and prudence of such costs.

A notice of the public consultation on the proposed implementing rules for the recovery of
DÉCOR and DICER was caused to be published by the ERC in the Philippine Star on
February 3, 2003. In the said notice and order, the ERC directed the parties to submit their
comments on the proposed implementing rules on or before February 12, 2003.

Several distribution utilities and consumer groups, including petitioner NASECORE, filed
their respective comments on the said proposed implementing rules for the recovery of
DÉCOR and DICER. Most of the utilities manifested their strong objections to the adoption
of the DÉCOR and DICER contending that these mechanisms would defeat the purpose of
escalator clauses such as the PPA and CERA. For their part, the consumer groups expressed
that the ERC should have taken into consideration consumer protection in the drafting of
the proposed implementing rules.

At the public consultation on February 17, 2003, the distribution utilities and consumer
groups appeared with their respective representatives. The consumer groups requested
for a separate consultation exclusively for them and the same was granted by the ERC.
Another public consultation was set on February 21, 2003 for the consumer groups. At the
said consultation, representatives of NASECORE and other consumer groups were present.
The ERC explained to these groups the DÉCOR and DICER. On the other hand, MERALCO
explained the PPA and the computation thereof. The consumer groups manifested their
concerns and these were noted by the ERC.

After taking into consideration the positions of the distribution utilities and the consumer
groups, the ERC promulgated the Order dated February 24, 2003 in ERC Case No. 2003-44.
In the said order, the ERC adopted the Implementing Rules for the Recovery of Fuel and
Independent Power Producer Costs: Generation Rate Adjustment Mechanism (GRAM) and
the Implementing Rules for the Recovery of the Incremental Currency Exchange Rate
Adjustment (ICERA). These implementing rules were all contained or incorporated in the
aforesaid order.

The GRAM replaced the PPA and the basic differences between these two recovery
mechanisms were outlined by the ERC thus:11

ELEMENTS PPA GRAM

1. Review by the 1. After the cost had 1. Before the cost may be
 regulatory body been passed on to the passed on to the

consumers. consumers.

2. Change in rates 2. Monthly 2. Quarterly

3. Change in 3. Automatic but subject 3. Only through a petition

recovery of
to confirmation by the to adjust generation rate
fixed costs of
ERC. subject to approval by the
generation
ERC within a maximum

period of forty five (45)

days.

4. Transmission 4. Included 4. Excluded

5. System loss and 5. Included 5. Excluded

franchise tax

6. Carrying cost 6. Without carrying cost 6. With carrying cost

On the other hand, the ICERA replaced the CERA and the basic differences between these
two recovery mechanisms were outlined by the ERC thus:12

ELEMENTS CERA ICERA

1. Review by the 1. After the cost had 1. Before the cost may be
passed on to the
regulatory body been passed on to the
consumers.
consumers.

2. Change in rates 2. Monthly 2. Quarterly

3. Carrying cost 3. Without carrying cost 3. With carrying cost

The respective effectivity clauses of the implementing rules of the GRAM and the ICERA
provided that they shall take effect immediately.13

Thereafter, in consonance with the Decision dated March 20, 2003 in ERC Cases Nos. 2001-
646 and 2001-900 and the Order dated February 24, 2003 in ERC Case No. 2003-44,
respondent MERALCO filed with the ERC an amended application entitled "In the Matter of
the Application for the Recovery of the Independent Power Producer Costs under the
Generation Rate Adjustment Mechanism (GRAM)," docketed as ERC Case No. 2004-112.

Earlier, acting on respondent MERALCO’s 1st application under the GRAM, the ERC, in the
Order dated January 21, 2004 in ERC Case No. 2004-20, approved the generation charge
of P3.1886 per kWh, inclusive of the deferred PPA.

In the amended application, respondent MERALCO averred that it had recalculated its
proposed generation charge aimed at updating the generation charge of P3.1886 per kWh
allowed in the January 21, 2004 Order toP3.4664 per kWh inclusive of the following:

a. Computed Deferred Accounting Adjustment (DAA) of P0.0028 per kWh inclusive of the
remaining balance in the DAA under the first GRAM;

b. Deferred PPA of P0.1248 per kWh, increasing by P0.0022 from the P0.1226 previously
authorized under ERC Case 2004-20. The increase is to account for the remaining 2 months
(December 2003 and January 2004) IPP VAT savings passed on as part of the Mandated
Rate Reduction (MRR).14

Among others, respondent MERALCO averred that the proposed generation charge
of P3.4664 per kWh was computed in conformity with the generation rate formula in
Section 615 of the Implementing Rules for the Recovery of Fuel and Independent Power
Producer Costs or the Generation Rate Adjustment Mechanism (GRAM), hereinafter
referred to as the GRAM Implementing Rules. It thus prayed that the said proposed
generation charge be approved for its implementation.

In the assailed Order dated June 2, 2004, the ERC approved the increase of respondent
MERALCO’s generation charge albeit only from P3.1886 to P3.3213 per kWh, the same to
take effect immediately.

The Petitioners’ Case

Petitioners NASECORE, et al. forthwith filed with this Court the present petition for
certiorari seeking to nullify the said June 2, 2004 ERC Order for lack of requisite publication
of respondent MERALCO’s amended application, thereby depriving the petitioners of
procedural due process. In addition, they invoke Section 4(e), Rule 3 of the Implementing
Rules and Regulations (IRR) of the EPIRA which provides:

(e) Any application or petition for rate adjustment or for any relief affecting the consumers
must be verified, and accompanied with an acknowledgement of receipt of a copy thereof
by the LGU Legislative Body of the locality where the applicant or petitioner principally
operates together with the certification of the notice of publication thereof in a newspaper
of general circulation in the same locality.

The ERC may grant provisionally or deny the relief prayed for not later than seventy-five
(75) calendar days from the filing of the application or petition, based on the same and the
supporting documents attached thereto and such comments or pleadings the consumers
or the LGU concerned may have filed within thirty (30) calendar days from receipt of a
copy of the application or petition or from the publication thereof as the case may be.

Thereafter, the ERC shall conduct a formal hearing on the application or petition, giving
proper notices to all parties concerned, with at least one public hearing in the affected
locality, and shall decide the matter on the merits not later than twelve (12) months from
the issuance of the aforementioned provisional order.

This Section 4(e) shall not apply to those applications or petitions already filed as of 26
December 2001 in compliance with Section 36 of the Act.

According to the petitioners, the June 2, 2004 ERC Order is devoid of any basis as
respondent MERALCO did not comply with the requisite publication, i.e., its amended
application was not published in a newspaper of general circulation. As a result of the
omission, petitioners were not able to file their comments on respondent MERALCO’s
amended application for the increase of its generation charge. Invoking the Court’s
pronouncements in Freedom from Debt Coalition v. ERC and MERALCO,16 petitioners
conclude that failure to comply with the publication requirement renders the June 2, 2004
ERC Order null and void.

Respondent MERALCO’s Counter-arguments

Respondent MERALCO, for its part, urges the Court to uphold the validity of the assailed
ERC Order approving the increase of its generation charge. In essence, it contends that its
amended application for the increase of its generation charge is excluded and/or
exempted from the application of the publication requirement, among others, in Sec. 4(e),
Rule 3 of the IRR of the EPIRA. The applicable rules are the GRAM Implementing Rules
embodied in the ERC Order dated February 24, 2003. These rules govern any petition for
the recovery of fuel and purchased power costs.

In support of this contention, respondent MERALCO explains the nature and history of the
PPA, later replaced by the GRAM, in this wise: In 1974, respondent MERALCO owned and
operated all the power plants it was using. At the time, it charged the basic power rates
based on the cost of fuel and exchange rate at the time of the application for approval of
the adjusted rates. Some time in 1975, it sold to NAPOCOR its five base load generating
power plants.17
As a result of the sale, respondent MERALCO entered into an agreement with NAPOCOR
for the latter to supply all the electric power needed by the former to service its customers
within its franchise areas. Under the agreement, the electric power and energy purchased
by respondent MERALCO from NAPOCOR would be priced at thermal generating cost,
subject to fuel cost adjustment by NAPOCOR. The fuel cost adjustment allows the latter to
recover the increases in fuel oil over and above a base price.

In 1978, respondent MERALCO applied with the Board of Power and Waterworks (BPW)
for the approval of Purchased Power Cost Adjustment to cover the increase in the cost of
electric power and energy being purchased from NAPOCOR. It (respondent MERALCO) also
applied for the approval of a fuel adjustment clause for the three peakload plants over
which it retained ownership.

In 1980, the Board of Energy (BOE), which took over the functions of the BPW, authorized
the PPA clause stating that it was "strictly for the purpose of cost recovery only." In other
words, every increase in the cost of fuel oil to NAPOCOR above a base price is reflected in
its fuel cost adjustment. NAPOCOR thus increases correspondingly the price of the power
sold to respondent MERALCO, which then passes the same to the customers under the
authority of the PPA clause.

In 1987, under EO No. 172, the Energy Regulatory Board (ERB) was created. It was granted
regulatory and adjudicatory powers and functions covering the energy sector. Also
enacted was EO No. 215 opening the business of electric power generation to the private
sector and allowed private corporations, cooperatives and similar associations, or the
independent power producers (IPPs), to operate electric generating plants within the
country.

In addition to its various powers and functions, the ERB was mandated to enforce the
pertinent provisions of RA No. 7832, otherwise known as the "Anti-Electricity and Electric
Transmission Lines/Materials Pilferage Act of 1994." To ensure the viability of private
electric utilities, RA No. 7832 allows distribution utilities to pass on to its consumers
system losses equivalent to either the actual kilowatt energy lost due to technical and non-
technical/pilferage causes, or the cap imposed by law, whichever is lower. Said law
provides that in no case shall the system loss cap be lower than 9%.18

Pursuant to RA No. 7832, the ERB adopted a formula to be used in computing the PPA to
be charged by respondent MERALCO to its customers. The new PPA formula included
among its components the system loss, franchise tax, the automatic cost adjustments and
other adjustments of NAPOCOR and other IPPs and the generation cost of electricity.

The said PPA formula subsequently underwent several modifications. Each revision was
approved by the ERB after service of the notices of public hearing on the respective
mayors of the cities and municipalities within respondent MERALCO’s franchise area,
posting thereof on the respective bulletin boards of the said local government units, and
publication in two newspapers of general circulation.

Thereafter, the EPIRA was enacted on June 8, 2001. As stated earlier, among other reforms
in the electric power industry, the said law created the ERC. Section 36 of the EPIRA
directed all distribution utilities to file with the ERC an application for the approval of their
unbundled rates. Respondent MERALCO complied therewith and acting on its application,
the ERC, in the Decision dated March 20, 2003 approved its unbundled rates. However,
respondent MERALCO was directed to discontinue charging the PPA upon effectivity of the
approved unbundled rates. The said order provided that any change in the cost of power
purchased shall be reflected as deferred charges or credits which shall be recovered
through the GRAM approved by the ERC for implementation per ERC Order dated February
24, 2003 in ERC Case No. 2003-44.

According to respondent MERALCO, the GRAM is an adjustment recovery mechanism

which replaces the automatic recovery adjustment mechanisms (Fuel and Purchased
Power Cost Adjustments) of NAPOCOR and the PPA of the distribution utilities. The GRAM
would allow the periodic (quarterly) adjustment of the generation charge to reflect
changes in fuel and purchased power costs after review by the ERC and before the costs
are passed on to the customers.

The authority of the ERC to promulgate the GRAM Implementing Rules is found in Section
43 of the EPIRA which requires the said regulatory body to, among others, "establish and
enforce a methodology for setting transmission and distribution wheeling rates and retail
rates for the captive market of a distribution utility, taking into account all relevant
considerations, including the efficiency or inefficiency of the regulated entities. The rates
must be such as to allow the recovery of just and reasonable costs and a reasonable return
on rate base (RORB) to enable the entity to operate viably..."

Respondent MERALCO asserts that Section 4(e), Rule 3 of the IRR of the EPIRA requiring
the publication of its application in a newspaper of general circulation and the service of a
copy thereof to the concerned local government units is inapplicable. Rather, its amended
application for the increase of its generation charge is governed by the GRAM
Implementing Rules adopted by ERC in the Order dated February 24, 2003 in ERC Case No.
2003-44. The pertinent portion of the latter rules reads:

Sec. 5. Generation Cost Accounting Application

1. A utility shall file a deferred generation cost accounting application setting forth its
calculations of the generation rate. For NPC, said filing shall be for a particular grid. The
filing shall be made every three (3) months.

2. Applications by NPC shall be grid specific and are not required to be filed concurrently.

3. An application must be filed not later than thirty (30) days after the adjustment date.
4. The proposed generation rate must be based on the volumes and allowable costs for the
test period designated by the Commission and calculated in accordance with Section 6
hereof.

5. The Commission shall issue a decision no later than forty-five (45) days from the date
the petition is accepted for filing. Should the Commission fail to act within forty-five (45)
days the petition is deemed approved in full.

Respondent MERALCO opines that to require it to comply with the requirements of Section
4(e), Rule 3 of the IRR of the EPIRA would defeat the reason behind the implementation of
the adjustment mechanism which, quoting the ERC, is "to balance the need for timely
recoveries of costs by the Utilities with the Commission’s need to review the
reasonableness and prudence of such costs."

Respondent MERALCO points out that Section 4(e), Rule 3 of the IRR of the EPIRA is
inconsistent with the GRAM Implementing Rules specifically with respect to the period
within which the ERC is mandated to render its decision on the application. Under the
former, the ERC may issue a provisional authority within seventy-five (75) days from the
filing of the application or petition and shall decide the matter on the merits not later than
twelve (12) months from the issuance of said provisional order. On the other hand, the
GRAM Implementing Rules allows the distribution utilities to apply for adjustment
quarterly and the ERC must decide the application within forty-five (45) days from receipt
thereof, before the costs may be passed on to the consumers. Otherwise, the application
shall be deemed approved.

Respondent MERALCO notes that the cost recovery mechanism is dictated by the situation
whereby the cost of purchased power is unstable due principally to escalating fuel oil
prices and fluctuations in the foreign exchange rates. The GRAM Implementing Rules was
so promulgated to address this situation and answer the need for timely recoveries of
costs by utilities, by allowing them to file every three (3) months an application for the
recovery of the fuel and purchased power costs.

Respondent MERALCO posits that in formulating the GRAM Implementing Rules, the ERC’s
primary objective was the protection of the consumers by ensuring that any application for
the fuel and purchased power costs is subject to its review to determine the
reasonableness and prudence of such cost, before they are passed on to the consumers.
Further, unlike the PPA which is an automatic adjustment and subject to confirmation by
the regulatory body only after the costs had been passed on to the consumers, the GRAM
Implementing Rules provides for a regulatory lag of six (6) months within which the
distribution utilities are authorized to recover their fuel and purchased power costs. The
latter is therefore beneficial to the consumers.

Respondent MERALCO maintains that the GRAM is a revenue-neutral recovery process,

which means that it (respondent MERALCO) pays for the fuel and purchased power costs
to its suppliers even before it could fully collect from its customers. And that out of these
collections from its customers, not a single centavo is retained by respondent MERALCO,
except for the carrying cost, but turned over to NAPOCOR and the other IPPs.

It would be allegedly violative of due process to require respondent MERALCO to comply

with Section 4(e), Rule 3 of the IRR of the EPIRA and subject it to a long and tedious
process of recovering its fuel and purchased power costs. Such would be contrary to the
intent and purpose of the GRAM Implementing Rules.

On the other hand, respondent MERALCO refutes the petitioners’ claim of denial of due
process. It alleges that the petitioners were given every opportunity to be heard in a public
consultation and submit their written comments. Respondent MERALCO quotes the ERC
Order dated February 24, 2003 containing the GRAM Implementing Rules which states that
the same was issued only after the ERC "has taken into consideration all the documents,
data, comments and concerns raised by all the parties concerned who have submitted
their respective positions thereon."

Respondent MERALCO contends that the petitioners cannot deny any knowledge of the
GRAM Implementing Rules particularly on the manner and timeline for filing an application
for GRAM and the period within which the ERC must act and decide thereon. Accordingly,
even without need of publication, posting and service to the local government units
concerned, the petitioners should have allegedly filed their opposition to respondent
MERALCO’s amended application to increase its generation charge. Further, they should
have filed their comment or opposition thereon within the forty-five (45) day-period within
which the ERC was required to render its decision. The petitioners’ omission is allegedly
fatal to their present cause of action.

Respondent MERALCO observes that the petitioners did not appeal the Order dated
February 24, 2003 of the ERC adopting the GRAM Implementing Rules. Neither have they
allegedly shown that they were deprived of their right to be heard when the said rules
were promulgated. For this lapse, respondent MERALCO stresses that the petitioners have
no personality to claim denial of due process and prays that the Court dismiss the present
petition.

ERC’s Counter-arguments

The ERC, through the Office of the Solicitor General (OSG), defends the validity of its June
2, 2004 Order approving the increase of respondent MERALCO’s generation charge
from P3.1886 to P3.3213 per kWh effective immediately. According to the ERC, the said
order was issued in accordance with the GRAM Implementing Rules it promulgated in the
Order dated February 24, 2003 in ERC Case No 2003-44.

Prior to the EPIRA, the ERB adopted the Rules and Regulations Implementing RA No. 7832.
A provision of the said implementing rules provided for the "automatic cost adjustment
formula" applicable to private distribution utilities and electric cooperatives, which
became known as the PPA. Under this provision, the distribution utilities were authorized
to adopt a restructured rate schedule including its PPA formula, subject to the approval of
the ERB. Respondent MERALCO’s rate schedule and PPA, and the subsequent revisions
thereon, were approved by the ERB.

The ERC now anchors its authority to promulgate the GRAM Implementing Rules on
Section 43(f)19 of the EPIRA which, among others, expressly authorizes it to establish and
enforce a methodology for setting transmission and distribution wheeling rates and retail
rates for the captive market of a distribution utility. In relation thereto, Section 25 of the
same law also provides that "the retail rates charged by distribution utilities for the supply
of electricity in their captive market shall be subject to regulation by the ERC based on the
principle of full recovery of prudent and reasonable economic costs incurred, or such other
principles that will promote efficiency."

Section 43(u) thereof is also cited which vests the ERC with "the original and exclusive
jurisdiction over all cases contesting rates, fees, fines and penalties imposed by the ERC in
the exercise of the abovementioned powers, functions and responsibilities and over all
cases involving disputes between and among participants or players in the energy sector."
Section 36 thereof directed the distribution utilities to file their revised rates for the
approval by the ERC and that the distribution wheeling charges shall be unbundled from
the retail rate and the rate shall reflect the respective costs of providing each service.

The ERC explains that it adopted the GRAM Implementing Rules as it noted certain
problems with the then existing PPA mechanism. Among these problems were the non-
uniform implementation due to the use of different formulas by the distribution utilities;
the confirmation process was conducted long after the costs had been recovered from the
consumers and; the rates were changed without the order of the ERC.

Among others, the GRAM Implementing Rules provides for a uniform formula to arrive at
the generation rate of a distribution utility.20 The said implementing rules also provide for
a formula for deferred accounting adjustment (DAA) which must be established in an
application for deferred generation cost accounting relief. The distribution utilities are
allowed to adjust their respective generation rates quarterly upon filing of a petition with
the ERC, which shall decide thereon within a maximum period of forty-five (45) days.

According to the ERC, respondent MERALCO filed its 1st GRAM application on January 16,
2004 docketed as ERC Case No. 2004-20. In the said application, respondent MERALCO
proposed a generation charge of P3.2041 per kWh. The ERC, in its Order dated January 21,
2004, approved the generation charge of P3.1886 per kWh effective immediately.

Consistent with the GRAM being an adjustment mechanism which had to be filed every
quarter, respondent MERALCO filed on April 19, 2004 its amended application under the
GRAM for the increase of its generation charge from P3.1886 to P3.4664 per kWh. The
case was docketed as ERC Case No. 2004-112. Resolving the same, the ERC rendered the
assailed Order dated June 2, 2004 approving the increase of respondent MERALCO’s
generation charge to P3.3212 per kWh effective immediately.

The ERC denies having committed any grave abuse of discretion in issuing the assailed
order. Like respondent MERALCO, the ERC asserts that the procedure prescribed under the
GRAM Implementing Rules, particularly Section 221 and 522 thereof, radically differs from
that provided for in Section 4(e), Rule 3 of the IRR of the EPIRA. Specifically, the GRAM
Implementing Rules do not require that the application of a distribution utility like
respondent MERALCO under the said rules be published or that comments of local
government units and the consumers thereon be solicited.

The procedure prescribed by the GRAM Implementing Rules is markedly different from
that of the IRR of the EPIRA because the GRAM was intended to be an adjustment
mechanism and not an independent rate application by itself. Only the latter falls within
the contemplation of the IRR of the EPIRA. Explaining the nature and purpose of an
adjustment mechanism, the ERC quotes the following disquisition:

The fuel and purchased power adjustment clause is a widely used regulatory tool which
can avoid the necessity of repeated general rate proceedings, and which can allow for an
intense and specialized review of fuel and purchased power costs (Re Arizona Pub. Service
Co., 76 PUR 4th 399, 1986). Although the authority to approve automatic fuel adjustment
clauses was not granted expressly in the District of Columbia Code, the commission held
that the code, under its broad grant of authority to the commission, impliedly permitted
the clause (Re Potomac Electric Power Co., 2 DC PSC 391, Formal Case No. 725, Order No.
7428, Dec. 23, 1981).

Automatic adjustment clauses have been adopted for the recovery of certain utility costs
only under the following limited and well-recognized circumstances: (1) when such costs
are extremely volatile, changing rapidly over short periods of time, e.g, the cost of coal or
other fuel burned to generate electricity or the cost of natural gas; (2) when such volatile
cost changes represent significant portions of total utility operating expenses, and (3)
when such volatile cost changes are beyond the ability of the utility to control, e.g., a utility
must purchase coal or gas at whatever prices that procedures or pipelines are willing to
sell (Re Mountain States Teleph. & Teleg. Co., 78 PUR 4th 287, 1986). The Oregon Public
Utility Commission recently described the purpose of an "escalator" clause , which it
euphemistically called a "tracker" as follows: "It purports to track a particular cost,
increasing or decreasing revenues just enough to offset the alleged change in cost. The
isolated cost is ordinarily one over which the utility has no influence and about which there
is little likelihood of dispute" (Re Portland General Electric Co., 104 PUR 4th 266, 268, Or.
P.U.C., 1989).

It is clear from the foregoing that "escalator" or "tracker" or any other similar automatic
adjustment clauses are merely cost recovery or cost "flow-through" mechanisms; that
what they purport to cover are operating costs only which are very volatile and unstable in
nature and over which the utility has no control; and that the use of the said clauses is
deemed necessary to enable the utility to make the consequent adjustments on the
billings to its customers so that ultimately its rate of return would not be quickly eroded by
the escalations in said costs of operation. The total of all rate adjustments should not
operate to increase overall rate of return for a particular utility company above the basic
rates approved in the last previous rate case (Re Adjustment Clause in Telephone Rate
Schedules, 3 PUR 4th 298, N.J. Bd. of Pub. Util.Comm’rs., 1973. Affirmed 66 N.J. 476, 33
A.2d 4, 8 PUR 4th 36, N.J.,1975).23

The ERC stresses that the GRAM Implementing Rules set forth in its Order dated February
24, 2003 was duly published and submitted for exhaustive public consultation. The ERC
points out that, as recounted in the said order, the following procedural steps were taken
leading to the adoption of the GRAM and ICERA Implementing Rules:

On January 29, 2003, the Commission issued an Order setting for public consultation its
proposed Implementing Rules for the Recovery of Deferred Fuel and Independent Power
Producer Costs (DÉCOR) and the Deferred Incremental Currency Exchange Recovery
(DICER) on February 17, 2003. Likewise, a Notice of the same tenor as the above
mentioned Order was published by the Commission in the Philippine Star on February 3,
2003.

In the aforesaid Order and Notice, interested parties were directed to submit their written
comments on the said proposed implementing rules on or before February 12, 2003.

In compliance therewith, the following parties filed their respective comments on various
dates:

1. Manila Electric Company (MERALCO);

2. Dagupan Electric Corporation (DECORP);

3. National Power Corporation (NPC);

4. First Gas Holdings Corporation (FGHC);

5. Angeles Electric Corporation (AEC);

6. National Power Corporation (NPC);

7. Small Power Utilities Group – NPC (NPC-SPUG);

8. Cotabato Light Company (COLIGHT);

9. Iligan Light Power Incorporated (ILPI);

10. Visayan Electric Company (VECO);

11. Tarlac Electric Incorporated (TEI);

12.Cagayan Electric Power and Light Company, Inc. (CEPALCO);

13. Davao Light and Power Company, Inc. (DLPC);

14. People Opposed Against Warrantless Electricity

Rates (POWER);

15. National Association of Electricity Consumers for Reforms

(NASECORE); and

16. Mr. Genaro Lualhati.

As culled from their comments, most of the Utilities manifested their strong objections to
the adoption of the DÉCOR and DICER. In general, they alleged that the adoption of said
mechanisms would defeat the purpose of escalator clauses such as the Purchased Power
Adjustment (PPA) and Currency Exchange Rate Adjustment (CERA) clauses. More
particularly, their common primary concerns, among others, were: a) the regulatory lag; b)
the carrying charge; and c) the recovery period.

At the scheduled public consultation on February 17, 2003, representatives of the various
distribution utilities appeared and were given opportunities to present their submitted
written comments. They were, likewise, allowed to manifest their additional comments.

On the other hand, the consumer sector was represented in the said public consultation by
the following: 1) Mr. Pete Ilagan from NASECORE; 2) Mr. Mike Ocampo, from the
Consumers Union of the Philippines (CUP); 3) Atty. Jose T. Baldonado; 4) Mr. Genaro
Lualhati; and 5) Mr. Renato Reyes from POWER. The primary concerns of the consumer
sector were: a) the Commission should have involved the public as early as in the drafting
of the proposed implementing rules; b) the Commission should have taken into
consideration consumer protection in the drafting of the proposed implementing rules; c)
the Commission should not change the term Purchase Power Adjustment (PPA) into
DÉCOR as it may confuse the consumers into assuming that the PPA will no longer be a
part of their electric bill, when in fact, it still is; d) the Commission should first decide
whether the electric power that is going to be recovered is actually used by the
consumers; e) the Recovery of IPP contract costs through the PPA, and now through the
DÉCOR, had been consistently objected to by the consumers as these are the result of
private commercial contracts between distribution utilities and their IPPs, thus, should not
bind the consumers; and f) the PPA for the "undelivered" power should be reflected
separately from the PPA for the delivered ones.

During the same public consultation, representatives from the consumer sector requested
that a separate consultation be conducted exclusively for the consumers to enable them to
fully understand the nature and effects of the DÉCOR and the DICER. Said request was
granted by the Commission. Accordingly, another consultation for the consumers was set
on February 21, 2003.

At the February 21, 2003 consultation, representatives from various consumer groups
headed by NASECORE, CUP and POWER appeared. In the same consultation, the
Commission presented and explained the DÉCOR and the DICER. Moreover, MERALCO
representatives likewise presented their explanation of the PPA and the computation
thereof. Consumer representatives then manifested their various concerns, which were
noted by the Commission.24

As can be gleaned, the DÉCOR and the DICER were eventually discarded and, instead, the
GRAM and ICERA Implementing Rules were adopted. It is underscored by the ERC that a
number of distribution utilities and consumer groups were present at the public
consultation and submitted their comments on the said implementing rules. In fact,
petitioner NASECORE’s representative, Mr. Ilagan, was present at the public consultation,
participated therein and submitted petitioner NASECORE’s comment. If they had any
objections to the GRAM Implementing Rules, they should have appealed the ERC Order
dated February 24, 2003. Petitioners did not do so. Neither did they complain when
respondent MERALCO’s 1st GRAM application resulted in the reduction of the generation
charge per ERC Order dated in January 21, 2004 in ERC Case No. 2004-20.

Hence, petitioners cannot now claim denial of due process due to the non-publication of
respondent MERALCO’s amended application. The ERC contends that it resolved the same
in accordance with the GRAM Implementing Rules which, unlike the PPA, allowed the ERC
to validate the costs associated in generating electricity before they are passed on to the
consumers. Consequently, respondent ERC did not commit grave abuse of discretion when
it issued the Order dated June 2, 2004 in ERC Case No. 2004-112 approving respondent
MERALCO’s revised generation charge at P3.3213 per kWh in accordance with the GRAM
Implementing Rules set forth in its February 24, 2003 Order in ERC Case No. 2003-44.

Finally, the ERC informs the Court that the GRAM Implementing Rules have been
superseded with the promulgation by the ERC on October 13, 2004 of the Guidelines for
the Automatic Adjustment of Generation Rates and System Loss Rates by Distribution
Utilities (AGRA).25 The AGRA allows distribution utilities to calculate their monthly
generation rates by summing up the net generation costs from the previous month over
total kilowatt-hours purchased for the previous month to automatically implement,
subject to a post verification audit by the ERC, the corresponding adjustment in generation
charges.
Issue

The issue raised by the parties is whether the ERC committed grave abuse of discretion in
issuing the Order dated June 2, 2004 in ERC Case No. 2004-112 which approved the
increase of respondent MERALCO’s generation charge from P3.1886 to P3.3213 per kWh
effective immediately without publication of the latter’s amended application.

The Court’s Ruling

The petition is granted.

Contrary to the stance taken by the respondents, the amended application of respondent
MERALCO for the increase of its generation charge is covered by Section 4(e), Rule 3 of the
IRR of the EPIRA. For clarity, the said provision is quoted anew:

(e) Any application or petition for rate adjustment or for any relief affecting the consumers
must be verified, and accompanied with an acknowledgement of receipt of a copy thereof
by the LGU Legislative Body of the locality where the applicant or petitioner principally
operates together with the certification of the notice of publication thereof in a newspaper
of general circulation in the same locality.

The ERC may grant provisionally or deny the relief prayed for not later than seventy-five
(75) calendar days from the filing of the application or petition, based on the same and the
supporting documents attached thereto and such comments or pleadings the consumers
or the LGU concerned may have filed within thirty (30) calendar days from receipt of a
copy of the application or petition or from the publication thereof as the case may be.

Thereafter, the ERC shall conduct a formal hearing on the application or petition, giving
proper notices to all parties concerned, with at least one public hearing in the affected
locality, and shall decide the matter on the merits not later than twelve (12) months from
the issuance of the aforementioned provisional order.

This Section 4(e) shall not apply to those applications or petitions already filed as of 26
December 2001 in compliance with Section 36 of the Act.

The respondents contend that this provision applies only to independent rate applications
and not to adjustment mechanisms like the GRAM; hence, respondent MERALCO’s
amended application for the increase of its generation charge is excluded and/or
exempted from the application of the requirements of the above-quoted provision. This
contention is erroneous. Section 4(e), Rule 3 of the IRR of the EPIRA could not be any
clearer with respect to its coverage as it refers to "any application or petition for rate
adjustment or for any relief affecting the consumers."

In this connection, the EPIRA’s definition of "retail rate" is instructive:

(ss) "Retail Rate" refers to the total price paid by the end-users consisting of the charges
for generation, transmission and related ancillary services, distribution, supply and other
related charges for electric service.26

Section 4(e), Rule 3 of the IRR of the EPIRA speaks of "any application or petition for rate
adjustment" without making any distinctions. Hence, any application or petition that
would result in the adjustment or change in the total price (retail rate) paid by the end-
users, whether this change or adjustment is occasioned by the adjustment or change in the
charges for generation, transmission, distribution, supply, etc., falls within its
contemplation.

In any case, that respondent MERALCO’s amended application is covered by the said
provision is mandated by the fact that the relief prayed for therein clearly affects the
consumers as it results in the increase of the costs of their electricity consumption.

In Freedom from Debt Coalition v. ERC,27 the Court outlined the requirements of Section
4(e), Rule 3 of the IRR of the EPIRA as follows:

(1) The applicant must file with the ERC a verified application/petition for rate adjustment.
It must indicate that a copy thereof was received by the legislative body of the LGU
concerned. It must also include a certification of the notice of publication thereof in a
newspaper of general circulation in the same locality.

(2) Within 30 days from receipt of the application/petition or the publication thereof, any
consumer affected by the proposed rate adjustment or the LGU concerned may file its
comment on the application/petition, as well as on the motion for provisional rate
adjustment.

(3) If such comment is filed, the ERC must consider it in its action on the motion for
provisional rate adjustment, together with the documents submitted by the applicant in
support of its application/petition. If no such comment is filed within the 30-day period,
then and only then may the ERC resolve the provisional rate adjustment on the basis of the
documents submitted by the applicant.

(4) However, the ERC need not conduct a hearing on the motion for provisional rate
adjustment. It is sufficient that it consider the written comment, if there is any.

(5) The ERC must resolve the motion for provisional rate adjustment within 75 days from
the filing of the application/petition.

(6) Thereafter, the ERC must conduct a full-blown hearing on the application/petition not
later than 30 days from the date of issuance of the provisional order. Effectively, this
provision limits the lifetime of the provisional order to only 12 months.28

Among the important requirements introduced under the foregoing process are: first, the
publication of the application itself, not merely the notice of hearing issued by the ERC, in
a newspaper of general circulation in the locality where the applicant operates and;
second, the need for the ERC to consider the comments or pleadings of the customers and
LGU concerned in its action on the application or motion for provisional rate adjustment.29

The Court reasoned that the publication and comment requirements are in keeping with
the avowed policies of the EPIRA, to wit:

…[T]o protect the public interest vis-à-vis the rates and services of electric utilities and
other providers of electric power, to ensure transparent and reasonable prices of
electricity in a regime of free and fair competition and full public accountability for greater
operational and economic efficiency, to enhance the competitiveness of Philippine
products in the global market, and to balance the interests of the consumers and the
public utilities providing electric power through the fair and non-discriminatory treatment
of the two sectors.

Clearly, therefore, although the new requirements are procedural in character, they
represent significant reforms in public utility regulation as they engender substantial
benefits to the consumers. It is in this light that the new requirements should be
appreciated and their observance enforced.30

The lack of publication of respondent MERALCO’s amended application for the increase of
its generation charge is thus fatal. By this omission, the consumers were deprived of the
right to file their comments thereon. Consequently, the assailed Order dated June 2, 2004
issued by the ERC, approving the increase of respondent MERALCO’s generation charge
from P3.1886 to P3.3213 per kWh effective immediately, was made without giving the
consumers any opportunity to file their comments thereon in violation of Section 4(e),
Rule 3 of the IRR of the EPIRA.

Indeed, the basic postulate of due process ordains that the consumers be notified of any
application, and be apprised of its contents, that would result in compounding their
economic burden. In this case, the consumers have the right to be informed of the bases of
respondent MERALCO’s amended application for the increase of its generation charge in
order to, if they so desire, effectively contest the same. The following pronouncements are
quite apropos:

Obviously, the new requirements are aimed at protecting the consumers and diminishing
the disparity or imbalance between the utility and the consumers. The publication
requirement gives them enhanced opportunity to consciously weigh the application in
terms of the additional financial burden which the proposed rate increase entails and the
basis for the application. With the publication of the application itself, the consumers
would right from the start be equipped with the needed information to determine for
themselves whether to contest the application or not and if they so decide, to take the
needed further steps to repulse the application. On the other hand, the imposition on the
ERC to consider the comments of the customers and the LGUs concerned extends the
comforting assurance that their interest will be taken into account. Indeed, the
requirements address the right of the consuming public to due process at the same time
advance the cause of people empowerment which is also a policy goal of the EPIRA along
with consumer protection.31

It has also been stated that:

The requirement of due process is not some favor or grace that the ERC may dole out on a
bout of whim or on occasion of charity. Rather, it is a statutory right to which the
consuming public is entitled.

The requirement of publication in applications for rate adjustment is not without reason or
purpose. It is ancillary to the due process requirement of notice and hearing. Its purpose is
not merely to inform the consumers that an application for rate adjustment has been filed
by the public utility. It is to adequately inform them that an application has been made for
the adjustment of the rates being implemented by the public utility in order to afford them
the opportunity to be heard and submit their stand as to the propriety and reasonableness
of the of the rates within the period allowed by the Rule. Without the publication of the
application, the consumers are left to second-guess the substance and merits of the
application.32

At this point, it should be stated that the Court is not convinced by respondent MERALCO’s
argument that to require it to comply with Section 4(e), Rule 3 of the IRR of the EPIRA
would be a violation of its right to due process because it would be subjected to a long and
tedious process of recovering its fuel and purchased power costs. In Freedom from Debt
Coalition, the Court categorically upheld the ERC’s power to grant provisional adjustments
or power of interim rate-regulation. Such power is intended precisely for the ERC to, as Mr.
Justice Reynato S. Puno in his Concurring and Dissenting Opinion succinctly put it, "be able
to swiftly and flexibly respond to the exigencies of the times."33 He elucidated further on
the raison d’etre of the power of interim rate-regulation particularly in the context of our
country’s economic history:

…Our economic history teaches us that the Philippines is vulnerable to the rapid
fluctuations in the exchange rate. In recent years, we saw how numerous industries failed
to survive the Asian financial crises fueled by the uncertainties of exchange rates. All these
have had adverse financial impact on public utilities such as Meralco in terms of
skyrocketing costs of debt servicing, and maintenance and operating expenses. A regulator
such as the ERC should have sufficient power to respond in real time to changes wrought
by multifarious factors affecting public utilities.34

Thus, respondent MERALCO’s apprehension of being subjected to a long and tedious

process with respect to the recovery of its fuel and purchased power costs is, in fact,
addressed by the power of the ERC to grant provisional rate adjustments. The ERC is not,
of course, precluded from promulgating rules, guidelines or methodology, such as the
GRAM, for the recovery by the distribution utilities of their fuel and purchased power
costs. However, these rules, guidelines or methodology so adopted should conform to the
requirements of pertinent laws, including Section 4(e), Rule 3 of the IRR of the EPIRA.35

There is another compelling reason why reliance by respondent MERALCO and the ERC on
the GRAM Implementing Rules is unavailing. To recall, they advance the view that the June
2, 2004 ERC Order is valid, notwithstanding the fact that respondent MERALCO’s amended
application was not published in a newspaper of general circulation, because the same was
issued in accordance with the GRAM Implementing Rules which does not require such
publication.

It does not appear from the records, however, that the GRAM Implementing Rules, as set
forth in the ERC Order dated February 24, 2003 in ERC Case No. 2003-44, has been
published in the Official Gazette or in a newspaper of general circulation.

Executive Order No. 200, which repealed Article 2 of the Civil Code, provides that "laws
shall take after fifteen days following the completion of their publication either in the
Official Gazette or in a newspaper of general circulation in the Philippines, unless it is
otherwise provided."

The basic requirement of publication of statutes was explained in Tañada v. Tuvera36 as

follows:

We hold therefore that all statutes, including those of local application and private laws,
shall be published as a condition for their effectivity, which shall begin fifteen days after
publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly delegated by
the legislature, or at present, directly conferred by the Constitution. Administrative rules
and regulations must also be published if their purpose is to enforce or implement existing
law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither
is publication required of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties.37

A careful review of the procedural steps undertaken by the ERC leading to its issuance of
the Order dated February 24, 2003 in ERC Case No. 2003-44, which set forth the GRAM
Implementing Rules, as well as the Order dated June 2, 2004 in ERC Case No. 2004-112,
which approved the increase of respondent MERALCO’s generation charge purportedly in
accordance with the GRAM Implementing Rules, shows that there was no publication of
the same in the Official Gazette or in a newspaper of general circulation.

The procedural antecedents leading to the adoption of the GRAM Implementing Rules and
the approval of respondent MERALCO’s generation charge are outlined below based on
the ERC’s own account thereof:

q On January 29, 2003, the ERC issued an Order setting for public consultation its proposed
Implementing Rules for the Recovery of Deferred Fuel and Independent Power Producer
Costs (DÉCOR) and Deferred Incremental Currency Exchange Recovery (DICER) on February
17, 2003;

q Notice of the said public consultation was published in the Philippine Star on February 3,
2003;

q In the said notice and order, interested parties were directed to submit their written
comments on the proposed Implementing Rules for the Recovery of the DÉCOR and DICER
on or before February 12, 2003;

q In compliance therewith, several distribution utilities like respondent MERALCO and

consumer groups like petitioner NASECORE submitted their written comments. The
distribution utilities manifested their objections to the adoption of the DÉCOR and DICER
while the consumer groups expressed that the ERC should have taken into consideration
consumer protection when it drafted the proposed rules;

q On February 17, 2003, the public consultation took place where representatives of
various distribution utilities and consumer groups were present;

q Upon the request of the consumer groups, another public consultation was held for
them on February 21, 2003;

q On February 24, 2003, the ERC promulgated the Order setting forth the GRAM and ICERA
Implementing Rules. The said implementing rules provide that they shall take effect
immediately;

q On January 16, 2004 respondent MERALCO filed an application entitled In the Matter of
the Application for the Recovery of the Independent Power Producer Costs under the
Generation Rate Adjustment Mechanism (GRAM), docketed as ERC Case No. 2004-20. In
the said application, respondent MERALCO proposed that a generation charge of P3.2041
per kWh be approved;

q On January 21, 2004, the ERC approved respondent MERALCO’s generation charge
of P3.1886 per kWh effective immediately;
q On April 19, 2004, respondent MERALCO filed an amended application under the GRAM
for the approval of its proposed generation charge of P3.4664 per kWh, docketed as ERC
Case No. 2004-12.

q On June 2, 2004, the ERC promulgated the assailed Order approving respondent
MERALCO’s generation charge of P3.213 per kWh effective immediately.

Nowhere from the above narration does it show that the GRAM Implementing Rules was
published in the Official Gazette or in a newspaper of general circulation. Significantly, the
effectivity clauses of both the GRAM and ICERA Implementing Rules uniformly provide that
they "shall take effect immediately." These clauses made no mention of their publication
in either the Official Gazette or in a newspaper of general circulation. Moreover, per the
Certification dated January 11, 2006 of the Office of the National Administrative Register
(ONAR), the said implementing rules and regulations were not likewise filed with the said
office in contravention of the Administrative Code of 1987.38

Applying the doctrine enunciated in Tañada, the Court has previously declared as having
no force and effect the following administrative issuances: (1) Rules and Regulations issued
by the Joint Ministry of Health-Ministry of Labor and Employment Accreditation
Committee regarding the accreditation of hospitals, medical clinics and laboratories;39 (2)
Letter of Instruction No. 1416 ordering the suspension of payments due and payable by
distressed copper mining companies to the national government;40 (3) Memorandum
Circulars issued by the Philippine Overseas Employment Administration regulating the
recruitment of domestic helpers to Hong Kong;41(4) Administrative Order No. SOCPEC 89-
08-01 issued by the Philippine International Trading Corporation regulating applications for
importation from the People’s Republic of China;42 (5) Corporation Compensation Circular
No. 10 issued by the Department of Budget and Management discontinuing the payment
of other allowances and fringe benefits to government officials and employees;43 and (6)
POEA Memorandum Circular No. 2 Series of 1983 which provided for the schedule of
placement and documentation fees for private employment agencies or authority
holders.44

In all these cited cases, the administrative issuances questioned therein were uniformly
struck down as they were not published or filed with the National Administrative Register.
On the other hand, in Republic v. Express Telecommunications Co., Inc.,45 the Court
declared that the 1993 Revised Rules of the National Telecommunications Commission had
not become effective despite the fact that it was filed with the National Administrative
Register because the same had not been published at the time. The Court emphasized
therein that "publication in the Official Gazette or a newspaper of general circulation is a
condition sine qua non before statutes, rules or regulations can take effect."46

In this case, the GRAM Implementing Rules must be declared ineffective as the same was
never published or filed with the National Administrative Register. To show that there was
compliance with the publication requirement, respondents MERALCO and the ERC dwell
lengthily on the fact that the parties, particularly the distribution utilities and consumer
groups, were duly notified of the public consultation on the ERC’s proposed implementing
rules. These parties participated in the said public consultation and even submitted their
comments thereon.

However, the fact that the parties participated in the public consultation and submitted
their respective comments is not compliance with the fundamental rule that the GRAM
Implementing Rules, or any administrative rules whose purpose is to enforce or implement
existing law, must be published in the Official Gazette or in a newspaper of general
circulation. The requirement of publication of implementing rules of statutes is mandatory
and may not be dispensed with altogether even if, as in this case, there was public
consultation and submission by the parties of their comments.

The public consultation and submission by the parties of their comments were procedures
prior to the adoption of the GRAM Implementing Rules. In fact, at the time, the ERC’s
proposed implementing rules were denominated Implementing Rules for the Recovery of
DÉCOR and DICER. These procedural steps (public consultation and submission of
comments) are entirely different from the publication of statutes mandated by law, which
occurs after their promulgation or adoption.

The obvious purpose of the preliminary procedures of public consultation and submission
of comments is to give the parties the opportunity to air their views and express their
concerns on particular subject matters before legislative measures or implementing rules
and regulations addressing these matters are promulgated. On the other hand, the
avowed rationale for the requirement of publication of statutes is to apprise the public of
the contents of the laws or rules and regulations that have already been promulgated or
adopted. As the Court ratiocinated in Tañada:

It is not correct to say that under the disputed clause publication may be dispensed with
altogether. The reason is that such omission would offend due process insofar as it would
deny the public knowledge of the laws that are supposed to govern it. Surely, if the
legislature could validly provide that a law shall become effective immediately upon its
approval notwithstanding the lack of publication (or after an unreasonably short period
after publication), it is not unlikely that persons not aware of it would be prejudiced as a
result; and they would be so not because of a failure to comply with it simply because they
did not know of its existence. Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-penal measures, like a law on
prescription, which must also be communicated to the persons they may affect before
they began to operate.47

The Court likewise emphasized therein that the Bill of Rights recognizes "the right of the
people to information on matters of public concern."48
With respect to the GRAM Implementing Rules, its publication in the Official Gazette or in
a newspaper of general circulation is mandated by the fact that these rules seek to
implement key provisions of the EPIRA. More importantly, the GRAM Implementing Rules,
insofar as it lays down the procedure by which generation costs of distribution utilities are
recovered, affect ultimately the public as consumers of electricity and who pay the charges
therefor.

Clearly, the GRAM Implementing Rules affects the public inasmuch as it determines the
costs of electricity consumption. The public, not only the parties to the cases before the
ERC, has the right to be apprised of the contents of the GRAM Implementing Rules by
publication of the same in the Official Gazette or in a newspaper of general circulation in
the Philippines – to the end that it be given amplest opportunity to voice out whatever
opposition it may have, and to ventilate its stance on the matter.49

In light of the foregoing disquisition, the assailed ERC Order dated June 2, 2004 in ERC Case
No. 2004-112 approving the increase of respondent MERALCO’s generation charge
from P3.1886 to P3.3213 per kWh effective immediately is nullified for having been issued
with grave abuse of discretion.

WHEREFORE, premises considered, the petition is GRANTED. The assailed ERC Order dated
June 2, 2004 in ERC Case No. 2004-112 is DECLARED VOID and accordingly SET ASIDE.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

REYNATO S. PUNO LEONARDO A. QUISUMBING

Associate Justice Asscociate Justice

CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ

Associate Justice Asscociate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Asscociate Justice
 RENATO C. CORONA CONCHITA CARPIO MORALES
Associate Justice Asscociate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Asscociate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1
As represented by the following: Petronilo Ilagan (NASECORE), Siegfriedo Veloso (FOVA)
and Bonifacio Dazo (FOLPHA).
2
Section 2.
3
Section 38.
4
Id.
5
Section 43.
6
Section 43.
7
Entitled IN THE MATTER OF THE APPLICATION FOR APPROVAL OF REVISED RATE
SCHEDULES IN COMPLIANCE WITH SECTION 36 OF REPUBLIC ACT NO. 9136 AND ERC
ORDER DATED OCTOBER 30, 2001, AND FOR APPROVAL OF APPRAISAL OF PROPERTIES
WITH PRAYER FOR PROVISIONAL AUTHORITY.
8
Entitled IN THE MATTER OF THE APPLICATION FOR APPROVAL OF REVISION OF RATE
SCHEDULES AND APPRAISAL OF PROPERTIES WITH PROVISIONAL AUTHORITY. This case
was originally docketed as ERB Case No. 2000-57 pending before the then Energy
Regulatory Board. It involved MERALCO’s application, filed on April 14, 2000, for approval
of revision of rates schedules and appraisal of properties with prayer for provisional relief,
resulting in an increase in its Basic Charge by about thirty centavos per kilowatthour
(P0.30kWh).
9
Rollo, p. 219.
10
Entitled IN THE MATTER OF THE ADOPTION OF THE GENERATION RATE ADJUSTMENT
MECHANISM (GRAM) AND INCREMENTAL CURRENCY EXCHANGE RECOVERY ADJUSTMENT
(ICERA).
11
Rollo, p. 229.
12
Id. at 232.
13
Section 13 of the GRAM and Section 12 of the ICERA as contained in the Order dated
February 24, 2003 in ERC Case No. 2003-04.
14
Rollo, p. 26.
15
GR = Generation Rate for test period i

BR = Base Rate per Grid based on CY 2000 costs

FC = Fuel costs (if applicable) as approved by the ERC subject to heat rate cap.

PP = Purchased power costs as approved by the ERC

DDA = Deferred accounting adjustment

FC period i + PP period i
GR = BR + + DAA
KWh sales period i

16
Penned by Justice Dante O. Tinga. G.R. No. 161113, 15 June 2004 (432 SCRA 157). In gist,
in the said case, the Court ruled that the ERC has the authority to grant provisional rate
adjustments. However, such grant must comply with the requirement of publication,
among others, as embodied in Section 4 (e), Rule 3 of the IRR of the EPIRA.
17
The sale was pursuant to Presidential Decree No. 40 which established the basic power
policy of the Republic of the Philippines.
18
Section 10, RA No. 7832. This was later amended by RA 9136 which replaced the system
loss cap under Sec. 10 of RA No. 7832 with caps to be determined by the ERC based on
load density, sales mix, cost of service, delivery voltage and other technical considerations
it may promulgate.
19
Supra.
20
Supra, note 15.
21
The provision reads:

Sec. 2. Scope.

The provisions of this Rule shall provide for the procedure to be followed for the recovery
of Deferred Energy Cost incurred by the NPC and any distribution utility that purchases
energy from a source other than or in addition to NPC after the effective date of the
Utility’s unbundled rates.

…
22
Supra.
23
Memorandum of the ERC, pp. 24-25; rollo, pp. 593-594.
24
Rollo, pp. 47-51.
25
Memorandum, pp.31-32; Rollo, pp. 600-601.
26
Section 4 (ss).
27
Supra.
28
Id. at 190-191.
29
Id. at 193.
30
Id. at 195.
31
Id.
32
Concurring and Dissenting Opinion of Justice Alicia Austria-Martinez, id. at 266-267.
33
Concurring and Dissenting Opinion, id. at 234.
34
Id. at 235.
35
The Court stated in Freedom from Debt Coalition that "[s]ince the IRR was issued
pursuant to the EPIRA, Section 4(e) of Rule 3 as part of the IRR has the force and effect of
law." ; Id. at 199.
36
230 Phil. 528 (1986).
37
Id. at 535. Underscoring ours.
38
Book VII, Chapter 2, Section 3 thereof states:
Filing. – (1) Every agency shall file with the University of the Philippines Law Center three
(3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of
this Code which are not filed within three (3) months from the date shall not thereafter be
the basis of any sanction against any party or persons.

(2) The records officer of the agency, or his equivalent functionary, shall carry out the
requirements of this section under pain or disciplinary action.

(3) A permanent register of all rules shall be kept by the issuing agency and shall be open
to public inspection.
39
Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee v.
CA, G.R. No. 78254, 25 April 1991, 196 SCRA 263.
40
Caltex Phils., Inc. v. CA, G.R. No. 92585, 8 May 1992, 208 SCRA 726.
41
Philippine Association of Service Exporters v. Torres, G.R. No. 101279, 6 August 1992,
212 SCRA 298.
42
Philippine International Trading Corp. v. Angeles, 331 Phil. 723 (1996).
43
De Jesus v. Commission on Audit, G.R. No. 109023, 12 August 1998, 294 SCRA 152.
44
Philsa International Placement and Services Corp. v. Secretary of Labor and Employment,
G.R. No. 103144, 4 April 2001, 356 SCRA 174.
45
424 Phil. 372 (2002).
46
Id. at 393.
47
Supra at note 24, p. 534.
48
Section 7, Article III of the Constitution.
49
See De Jesus v. Commission on Audit, G.R. No. 109023, 12 August 1998, 294 SCRA 152.

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